Judge Rules Against NYC Porn Shop Ban

Eleven years ago one of the first things just-elected Mayor Bloomberg did was to order porn shops out of Times Square so that the area would be safe for "family friendly" businesses like the Disney Store and Bubba Gump's. City zoning officers had long been stymied in their attempts to enforce a 1995 law which stipulates that a business would be classified as "sex-centered" if more than 60% of the items on sale were of an erotic nature.

Those enforcement attempts had failed because porn operators had responded by stuffing the fronts of their stores with thousands of children's and martial arts titles, thereby reducing the porn percentage and bewildering tourists who wandered in expecting only to find The Little Mermaid and certainly not Ghetto Gangbang #22 or an invitation to join a lovely lady in the upstairs lounge. In 2001 Bloomberg tried to close that 60/40 loophole by adding another zoning demand to force those businesses into areas less trafficked by tender eyes.

That second push worked, mostly, but Bloomberg was a little too successful in cleaning up Times Square because the avalanche of chain restaurants and mainstream retailers to the area then spilled over onto Eighth Avenue, where many porn outlets had relocated. Oops. Yesterday a judge ruled that the original 60/40 law is unconstitutional.

Martin P. Mehler, a lawyer who represented several topless clubs in the case, said the city’s defense of the 2001 law failed because the original 60-40 rule had worked. “We have adhered to what the law was,” Mr. Mehler said. “It has accomplished its goal of doing away with that tawdry atmosphere that used to exist in Times Square, and there was no need to take away a basic First Amendment right.” Lawsuits challenging the 2001 law have taken many turns over the last decade. Justice York twice before, in 2009 and 2010, found the law to be constitutional.

But he was directed by appellate courts to reconsider both rulings. The litigation may not be over. City lawyers said on Thursday that they would appeal. But Herald Price Fahringer, who represented more than 100 video stores in the case, said the suit was not about protecting neighborhoods as much as about free speech and letting the marketplace, rather than government, decide which businesses survive. “It’s wrong for a city or a state to say, ‘We’re banning this type of literature, and we’re not going to allow you to read or see it,’ ” he said. “That’s just un-American.”