ALBUQUERQUE (CN) - A divided New Mexico appeals court upheld an Albuquerque city ordinance that banned the showing of an adult film at an art-house movie theater, finding the theater's free speech rights were not violated.
In a 2-1 ruling, a three-judge panel with the New Mexico Court of Appeals upheld the ordinance that bans the public showing of adult films outside of zones determined by the city.
The Guild Cinema, a one-screen theater that shows independent feature films and documentaries, is located in the city's Nob Hill neighborhood, which is outside of the zones.
The city fined the theater $500 after it showed the film "Couch Surfers: Trans Men in Action" one time during its annual "Pornotopia" festival in 2008.
The theater then appealed to the Albuquerque state court, which affirmed the ruling and denied a motion for reconsideration.
With this appeal, the theater argued the ordinance is unconstitutionally vague because it failed to give notice that showing the film once transforms the theater into an "adult amusement establishment" under the ordinance and that, because no secondary effects resulted from the showing of the film, the city exceeded its zoning authority by wrongfully targeting the content of the speech.
Writing for the majority, Chief Judge Celia Castillo said the ordinance need not be more narrowly construed to avoid constitutional analysis.
"When the Ordinance is read literally, nothing in its plain meaning compels us to transform the word 'featuring' into 'regularly featuring,'" Castillo wrote. "Thus, we conclude that any theater which features an adult film - i.e., hosts a screening of a movie that depicts the anatomical areas and sexual acts listed in the Ordinance - is an adult amusement establishment as defined by the Ordinance, even if only one movie is shown, and, as such, it is subject to the terms of the Ordinance."
She also disagreed that the free speech rights of the theater were violated, deeming the ordinance a proper time-place-manner restriction.
In his dissent, Judge Johnathan Sutin wrote the theater should not be categorized as an adult amusement establishment, that such a conclusion is not supported by case law.
"The Guild is an established, mainstream, independent, single-screen, neighborhood, art theater," Sutin wrote. "Year-round, with a single weekend exception, the Guild does not daily or weekly feature or concentrate on sexually oriented conduct in the films it shows. It in no way regularly and substantially shows adult films ... To characterize the Guild as an "adult amusement establishment" for its single showing of an adult film defies a common understanding of that phrase." He also concluded the ordinance fails any applicable constitutional scrutiny, "The Ordinance must be, but is not, narrowly tailored to further a compelling or substantial governmental interest, as applied to the Guild,"
Sutin wrote. "No compelling or substantial governmental interest has been shown to exist for application of the Ordinance to the Guild. The Ordinance is, therefore, unconstitutional as applied to the Guild."