Court Rejects New York City’s Efforts to Restrict Sex Shops

Inside the Playpen on Eighth Avenue in Manhattan are aisles of every imaginable toy, movie and accessory. Credit Richard Perry/The New York Times

Inside the Playpen on Eighth Avenue in Manhattan are aisles of every imaginable toy, movie and accessory. Credit Richard Perry/The New York Times

Noah Remnick writes:

On a stroll through the Times Square of today, a visitor can slurp a bowl of gumbo at Bubba Gump Shrimp Company, buy a tube of mascara at Sephora and snap a selfie with a fleet of Elmos.

But if the fever of desire is at hand, it is still possible to find, within a few blocks, all manner of erotica at businesses like the Playpen, Lace and Private Eyes. Despite over 20 years of laws and lawsuits aimed at sanitizing New York City of what are decorously called “adult establishments,” some have endured. This week, an appeals court in Manhattan ruled that they have a legal right to do so.

Such video stores, bookshops and topless dancing clubs are protected by the First Amendment as long as no more than 40 percent of their offerings contain sexual themes, the Appellate Division of State Supreme Court ruled on Tuesday. The legal battle has dragged on for two decades and has pitted the free-speech rights of the businesses against the city’s efforts to keep them from filling up heavily trafficked areas.

“It’s all about free speech and whether you can regulate businesses and the content of those businesses based purely on someone’s animus towards the type of expression being offered there,” said Erica T. Dubno, of Fahringer & Dubno, who represented a coalition of theaters, video stores and bookstores. “But under the First Amendment, you can’t regulate speech without showing some type of harm.”

Nick Paolucci, a spokesman for the city’s Law Department, said the decision was being reviewed.

In the days when the Naked Cowboy still wore a diaper and chain stores descended on the area, Times Square teemed with peep shows, strip joints and other erotic establishments. As part of Mayor Rudolph W. Giuliani’s efforts to clean up the city and cut crime, the City Council in 1995 passed a zoning resolution that banned erotic cabarets, stores and other establishments from operating in certain areas, including residential neighborhoods, and within 500 feet of another sex-related business, a school, or a house of worship.

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