The fact that such regulation is based on content does not necessarily mean that regulation of nonobscene, sexually-explicit speech is invalid. The law developed under the First Amendment offers such speech protection “of a wholly different, and lesser magnitude.”
Young v. American Mini Theatres, 427 U.S. at 70, 96 S.Ct. at 2452. In
American Mini Theatres, the Court expressly ruled that the City of Detroit may legitimately use the content of adult motion pictures as the basis for treating them differently from other motion pictures. In order to prevent and clean up skid-rows, the ordinance confined theatres showing sex movies to a few areas of the city. A plurality of the Court upheld a content-based zoning ordinance restricting the location of adult movie theatres. The Court held that even though such sexually-explicit literature, unlike obscenity, is protected from total suppression, “the State may use the content of these materials as the basis for placing them in a different classification from other motion pictures.”
Id. at 70–71, 96 S.Ct. at 2452. Justice Steven's opinion is straightforward and clear. It says that “there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance.”
Id. at 61, 96 S.Ct. at 2448. The Court concluded that the classification made by the City of Detroit was justified by the City's interest in preserving its neighborhoods from deterioration—the now so-called “secondary effects” of erotic speech. The ordinance was upheld because it did not unduly suppress access to lawful speech.
American Mini Theatres recognized that regulation based on content may be necessary to protect other legitimate interests. The Court did not try to maintain that the ordinance
was, in fact, content-neutral; it stated only that it might be
treated as if it were content-neutral because, like commercial speech, it is less than fully protected.