First Amendment concerns re: eminent domain?

This isn't anywhere near Arkanssouri, but it does raise some interesting points.

From CentreDaily.com:

Pittsburgh's sole adult theater fighting for survival
Case pits free speech against redevelopment

By Mike Crissey

The Associated Press


PITTSBURGH - The fate of Pittsburgh's last X-rated movie theater is in the hands of the state Supreme Court, which heard arguments earlier this week pitting free speech against a $45 million plan to rebuild a blighted neighborhood.

The courts' ruling could finally end a seven-year legal battle that has cost theater owner George Androtsakis of New York and the Urban Redevelopment Authority of Pittsburgh more than $500,000 each in legal fees.

The state Supreme Court could also clarify how far municipalities or officials can go to get rid of adult businesses, according to one legal expert.

"It is an important case because it will define how municipalities can use eminent domain -- in this particular instance in respect to adult theaters -- and it could have an effect even on future zoning cases, depending on how broadly the justices write," said Robert D. Richards, co-director of the Pennsylvania Center for the First Amendment. "Municipalities all across the country have been struggling with these issues."

Since 1997, Androtsakis has tried to prevent the Garden Theater from being taken under eminent domain, saying the agency wants to shut the movie house down because it would be difficult to lure developers if there were an adult business in the middle of the block.

Androtsakis has said he has a right to show the movies under the First Amendment and a similar free speech clause in the state constitution, and that moviegoers have rights to watch them. Closing the theater would restrict those rights, in part because zoning laws would make it difficult to reopen the theater elsewhere, Androtsakis has argued.

The Urban Redevelopment Authority has countered that the seizure is legitimate because the movie theater was one of 47 properties included it its plan. Any free speech concerns are incidental, because the intent was to revive a blighted neighborhood, the authority argues. The agency has planned to use the theater, one of the largest buildings in the area, as an opera house or other cultural venue to anchor the block it dominates.

An Allegheny County judge and a state appeals court have turned away the theater's claims after rejecting stricter legal reviews of the seizure.

James Sargent, an attorney for the theater, urged the justices to apply a stricter review of the seizure -- which would require the agency to seek other alternatives the theater's closure -- because the Urban Redevelopment Authority had no other reason for seizing it other than to eliminate speech it thought was objectionable.

"The reason the property is being taken is because the URA wants to substitute a form of speech for a more desirable form of speech," Sargent told the justices.

The justices tried to inquire about whether the Urban Redevelopment Authority's decision to seize the movie house was solely because it showed adult films and whether the authority's use of eminent domain was legitimate.

"Why should we accept the premise that this is a neutral, unpointed application of law?" asked Chief Justice Ralph Cappy.

The Urban Redevelopment Authority would have tried to take any building in the three-block area, said Joel Aaronson, an attorney for the agency. "There is no question that the take of that theater, if it was empty and wasn't showing movies, would be legitimate."

Aaronson also tried to draw parallels to highway projects, which often use eminent domain, and businesses which claim free speech was limited by a forced move.

"The URA's action, taking one piece of property, doesn't reasonably or unreasonably limit speech," Aaronson said.

Aaronson also tried to counter arguments that the adult speech would be limited by closing down the theater, noting that people who wanted to see such materials could go to a video store or on the Internet.