Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)

JUSTICE BLACKMUN, concurring.

I join the Court’s opinion, but write separately to address two points that I believe are sources of some ambiguity in this still emerging area of the law.

First, I would emphasize that the presumption of validity that traditionally attends a local government’s exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment. In order for a reviewing court to determine whether a zoning restriction that impinges on free speech is "narrowly drawn [to] further a sufficiently substantial governmental interest," ante at 68, the zoning authority must be prepared to articulate, and support, a reasoned and significant basis for its decision. This burden is by no means insurmountable, but neither should it be viewed as de minimis. In this case, Mount Ephraim evidently assumed that, because the challenged ordinance was intended as a land use regulation, it need survive only the minimal scrutiny of a rational relationship test, and that, once rationality was established, appellants then carried the burden of proving the regulation invalid on First Amendment grounds. Brief for Appellee 11-12. After today’s decision, it should be clear that, where protected First Amendment interests are at stake, zoning regulations have no such "talismanic immunity from constitutional challenge." Young v. American Mini Theatres, Inc., 427 U.S. 50, 75 (1976) (concurring opinion).

My other observation concerns the suggestion that a local community should be free to eliminate a particular form of expression so long as that form is available in areas reasonably nearby. In Mini Theatres, the Court dealt with locational restrictions imposed by a political subdivision, the city of Detroit, that preserved reasonable access to the regulated form of expression within the boundaries of that same subdivision. It would be a substantial step beyond Mini Theatres to conclude that a town or county may legislatively prevent its citizens from engaging in or having access to forms of protected expression that are incompatible with its majority’s conception of the "decent life" solely because these activities are sufficiently available in other locales. I do not read the Court’s opinion to reach, nor would I endorse, that conclusion.*

Were I a resident of Mount Ephraim, I would not expect my right to attend the theater or to purchase a novel to be contingent upon the availability of such opportunities in "nearby" Philadelphia, a community in whose decisions I would have no political voice. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) ("`[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place,’" quoting Schneider v. State, 308 U.S. 147, 163 (1939)). Similarly, I would not expect the citizens of Philadelphia to be under any obligation to provide me with access to theaters and bookstores simply because Mount Ephraim previously had acted to ban these forms of "entertainment." This case does not require articulation of a rule for evaluating the meaning of "reasonable access" in different contexts. The scope of relevant zoning authority varies widely across our country, as do geographic configurations and types of commerce among neighboring communities, and this issue will doubtless be resolved on a case-by-case basis. For now, it is sufficient to observe that, in attempting to accommodate a locality’s concern to protect the character of its community life, the Court must remain attentive to the guarantees of the First Amendment, and in particular to the protection they afford to minorities against the "standardization of ideas . . . by . . . dominant political or community groups." Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949).

* I need not address here the weight to be given other arguments invoked by local communities as a basis for restricting protected forms of expression.