One of the last vestiges of the Old Times Square.

As we explored two weeks ago, the battle for Times Square was long and messy. On February 24, 1998, the Giuliani administration won a major legal battle when the New York Court of Appeals ruled that the City had legally re-zoned Times Square, a seeming death knell for the local adult entertainment industry.

One of the initiatives Rudy Giuliani is most known for is turning Times Square, a neighborhood that was awash in porn shops, strip clubs, and thinly disguised brothels, into a Disneyfied tourist destination. In 1995, the New York City Council amended the City’s Zoning Resolution, banning “adult” entertainment and businesses in certain commercial districts, a salvo clearly aimed at Times Square.

Even though Times Square had been known as a seedy part of the town since the 1930s, the number of adult establishments in New York City had grown from nine in 1965 to 177 in 1993, mostly in Manhattan. (Number may have peaked during the 1970s.) Many studies throughout the 80s and early 90s had proposed “cleaning up” Times Square. Of course, most of these 177 businesses were operating legally, and when the Zoning Amendment looked certain to put them out of business, they sued.

A recent ad from Stringfellow’s UK restaurant.

The legal challenge, Stringfellow’s of New York v. City of New York, was always going to be an uphill battle, but it was far from frivolous. Impressive First Amendment lawyers lined up against the City: the New York Civil Liberties Union, which represented patrons of these establishments; Fahringer & Dubno, which represented the establishments; and Mark Alonso, who represented Stringfellow’s, a gentlemen’s club.

The NYCLU already had an impressive record going to war with Giuliani, and director Norman Siegel was one of the most dogged First Amendment advocates in the game. Fahringer & Dubno was led by the legendary Herald Price Fahringer (Larry Flynt’s attorney), who passed away last week.  Mark Alonso had represented strip clubs for years, and would later befuddle the government by advising “adult” clients to simply allow minors so they could not be classified as “adult establishments.” When I spoke with Alonso, he praised the First Amendment team as a “fabulous” set of lawyers.

Yet this legal firepower couldn’t overcome the strong judicial presumption in favor of municipal re-zoning. The City won at the New York Supreme Court (NY’s trial court).  Though the Court of Appeals, New York State’s highest court, acknowledged that the Zoning Amendment aimed to curb speech protected by the First Amendment, it too gave deference to the City. Erica Dubno, one of the plaintiff attorneys, noted that the court was unmoved by the experts they brought in to counter the City’s scant evidence that the adult businesses were having an adverse effect on the neighborhood. (The City and the many community groups that entered the case in support of the City did counter with their own experts.) The courts may have been swayed by the City’s assurance that the establishments could open in industrial neighborhoods, like Long Island City. Over the years, however, LIC and many other neighborhoods were similarly re-zoned.

After two years of litigation, on February 24, 1998, the Court of Appeals ruled in favor of the City. One “Show World” patron lamented, “I’ve been coming here since I was ten. Where we gonna go now?”

Giuliani was triumphant, gloating that now the City could “reduce the number [of adult establishments] in the city to something like 20 or 30.” Given that his lawyers had argued precisely the opposite, this bravado nearly proved costly. The plaintiffs re-filed in federal court, but the District Court and Circuit Court were unwilling to re-litigate the case.

The story didn’t end there. The next question was how to define “adult establishments.” In a later case, the courts settled on a “substantial portion” standard, in which a store could stock up to 40% of its products with adult materials. Obviously this hurt businesses, but it was better than being shut down. Dubno says that many businesses modified their entire business plan, with topless bars adding everything from sushi to Shakespeare, porn shops adding action movies and adult theaters adding Bollywood.  This sidestep obviously infuriated Giuliani, and right after 9/11, the City Council amended the law yet again, banning any adult establishment that regularly featured such entertainment. The constitutionality of that law, remarkably enough, is still winding through the court system.

In the end the adult entertainment industry was most ravaged not by Rudy Giuliani, but the internet. Demand for erotic theater and videos took a huge hit, and many of those businesses shut down. Those that remained faced down the greatest foe to small business, rising commercial rents. Attorney Mark Alonso said that these factors, along with lawsuits over the wage and hour laws related to performers, have done more to shut down adult business than any city regulations.

A 2009 report by blogger EV Grieve tracked down 11 strip clubs/peep shops/DVD stores in the Times Square/Port Authority area, and in 2010 there was a report of a hidden porn theater, like those last elusive checker taxis. When the last adult stores and venues are gone, the culprits will be the internet, the rent being too damn high, and the cultural tastes of midwestern tourists, not a legal brief or Rudy in a china shop, and despite the power of the First Amendment. Just another example of humans being tossed around by the riptides of history.

Update: I received the following email from New York City’s Corporation Counsel regarding the ongoing litigation:

The case is now called Ten’s Cabaret.  The attorney argued the case last March in the Appellate Division, First Department.  We are currently awaiting a decision in that case, as well as one called People’s Theater.  Given the ongoing litigation, we cannot comment further.