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A key decision exploring First Amendment questions in the context of condemnation was very recently handed down by our state Supreme Court, with Chief Justice Ralph J. Cappy sounding off for the majority. The case is significant in both its result as well as the court’s thorough consideration of federal and state levels of scrutiny applicable upon allegations of the curtailment of free expression. The First Amendment of the U.S. Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” It is undeniable that speech, which necessarily includes expression, is a fundamental constitutional right upon which the unfettered exchange of ideas and debate absolutely hinges. Of course this freedom manifests itself in a variety of ways, some of which may be perceived as less socially constructive or valuable than others. For instance, “adult entertainment” displayed in the shape of films at a public theater, might conceivably offend the sensibilities of some, albeit a perfectly legal exposition. In the In re Condemnation by Urban Redevelopment Authority of the City of Pittsburgh, Appeal of New Garden Realty Corp. case, the New Garden theater operated an adult-content movie theater in the Federal North section of Pittsburgh. Much to the chagrin of the owner of the theater and the property upon which it was located (the owner happened to be the same person), the local redevelopment authority had “bigger” plans, if you will, for that parcel and another few dozen or so properties within a three-block area. In fact, the New Garden parcel was one of 47 properties targeted for acquisition and redevelopment. The redevelopment would be part of a comprehensive plan, of course. The Pittsburgh Urban Redevelopment Authority (URA) issued its conditions report, recommending that the Federal North Area (three square blocks) be certified as blighted. According to the URA, that area was saddled by high crime rates, a declining population, problem bars and an adult movie theater. The city’s planning commission endorsed the URA’s findings, which in turn led to creation of task force and eventually a proposal to acquire the Federal North area. City council’s imprimatur ultimately sealed the fate of those few dozen properties. The URA managed to enter into amicable agreements with 46 of the 47 owners. The New Garden theater rejected the plan, forcing the URA to declare a taking. Preliminary objections were filed alleging federal and state free-expression violations. They were dismissed by the Allegheny Common Pleas Court, and then affirmed by the Commonwealth Court. Several years of discovery and briefing occurred at the trial court level, all revolving around the legitimacy of the taking. Perhaps the most critical component of the litigation entailed the application of the suitable scrutiny standard in light of the federal and state allegations of free expression infringement. Throughout the course of this case, it goes without saying that New Garden vied for the strict-scrutiny test, whether or not the taking at hand was for a content-based or content-neutral reason. The lower court landed upon the O’Brien intermediate-scrutiny standard because of its own belief that the taking was done on a content-neutral basis. Under O’Brien, government regulation is sufficiently justified if the following four criteria are satisfied: The government is empowered to promulgate the regulation; an important or substantial governmental interest is furthered by the regulation; the regulation is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest. And that court had no problem concluding that the taking here passed constitutional muster under O’Brien. The Commonwealth Court would affirm, even going a step further with respect to the suitable-scrutiny test. For that court, not only was strict-scrutiny inappropriate, but also no scrutiny was required in the least pursuant to the edicts of the seminal Arcara decision. Under Arcara, where a law of general applicability only incidentally infringes, and no First Amendment scrutiny was even necessary. The Commonwealth Court also considered New Garden’s challenge that a state violation had occurred as well, necessitating the application of strict scrutiny where content-neutral reasons are inextricably bound up with content-based ones ( Pap’s II). The fact that the law here was one of general applicability was sufficient for the Commonwealth Court to dismiss this argument; for that court, the regulation still would have passed under strict scrutiny however. The Pennsylvania Supreme Court also confronted the question of which test to apply on the instant facts. It considered an extremely interesting point tendered by New Garden, chiefly that the New Garden property itself would serve a different entertainment purpose as part of the URA plan. In other words, the URA seeks to utilize that exact property for other forms of entertainment types of expression (non-erotic), a clear indication of the underlying content-based purpose. The URA’s express acknowledgment of the New Garden theater’s negative impact upon the area at issue is merely another example of this purpose. It is undisputed that the theater has long been a source of discomfort for various members of the community, who in turn have tried on more than one occasion to shut it down altogether. The New Garden court remained unconvinced however and wasted little time dismissing those arguments out of hand. A broader cultural use of the property, which would have the likely effect of revitalizing, was both permissible and content-neutral. As for community disdain, this was generated by entities other than the URA and therefore irrelevant. New Garden’s presupposition that Pittsburgh citizens would be entirely denied access to such “adult entertainment” necessarily failed as well; the theater was the last of its kind in the city. The First Amendment does, in fact, mandate strict-scrutiny analysis where complete suppression of a type of expression would occur. However, even if zoning issues and relocation presented an insurmountable obstacle for New Garden, other fora for this type of expression would still exist: DVDs, Internet downloads and other adult films, presumably. The New Garden court went on to affirm the Commonwealth Court on its application of the Arcara standard – the subject regulation required no First Amendment scrutiny at all. The plain fact was that law was one of general applicability (a three-block area) and created for a general purpose, the elimination of blight. Critically, O’Brien (intermediate-scrutiny) was inapposite because the government here did not act because of conduct with a significant expressive element. (This is what occurred in Arcara with the burning of a draft card.) That rationale would have made sense to New Garden had the law at issue truly been one of general applicability. In fact, the New Garden property was the only one condemned by the URA, making the project personal, if you will. The court easily explained away this illusion of specificity. All of the other owners cooperated with the URA, whereas New Garden held out, thereby necessitating the initiation of condemnation proceedings. The commonwealth’s constitutional free-expression provision is even more stringent than its federal counterpart. The seminal Pap’s II decision is demonstrative of this point. In that case, an Erie ordinance’s stated content-neutral reason subsumed an unstated content-based reason. That law was designed to combat the negative secondary effects of nude dancing and was inextricably linked to a suppression of the erotic message. Nevertheless, Pap’s II proved unhelpful for New Garden. For the court, the URA’s behavior was entirely content-neutral and unrelated to the freedom of expression. Additionally, a silent content-based reason is not intertwined with that stated purpose. Finally, even if Pap’s II and hence strict-scrutiny were applicable, the government has a compelling interest in combating the extremely serious problem of urban blight. Justice Thomas G. Saylor crafts the extremely persuasive dissenting opinion in New Garden, which is worthy of review. That opinion hones right in on the undeniable fact that the URA had decided to swap out one type of speech for another – from adult to more culturally appealing and broader forms, which begs the First Amendment question of whether reasonable alternative avenues for the communication of the affected speech are available. Query as to whether personal video booths for adult-film viewing and movie rentals outlets are qualitatively identical to viewing large-screen motion pictures as had been shown at New Garden. Additionally, the dissent distinguishes Arcara and concludes that Pap’s II is directly on point. It is undeniable that reinvigorating communities and eliminating blight are worthwhile causes. However, simply swapping out less family-oriented establishments is not necessarily the answer, especially where the activities occurring there are perfectly legal. To apply no First Amendment scrutiny at all or to conclude that no content-based reasons pertain to the analysis seems attenuated and results-oriented. HARPER J. DIMMERMAN represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer Inc., a title insurance company licensed in Pennsylvania and New Jersey. He may be reached at [email protected] or 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s solo and small firm committee and an executive committee member of the law practice management committee and YLD.

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