Affirmation of New York City’s Post-“60/40” Zoning Regime: Second Circuit Re-validates Content-Neutral Regulation of Adult Businesses

Introduction

The case of 59 Murray Enterprises, Inc. v. City of New York, Nos. 24-621 (L) et al., decided by the United States Court of Appeals for the Second Circuit on 8 July 2025, is the latest chapter in New York City’s three-decade effort to regulate the geographical location of adult entertainment venues.

Originally enacted in 1995, the City’s zoning rules attempted to confine sexually oriented businesses—strip clubs, topless bars, “peep-show” bookstores, and similar venues—to specified manufacturing and commercial districts, while mandating distance buffers from sensitive sites such as schools and churches. A loophole colloquially known as the “60/40” rule exempted an establishment if at least 60 % of its floor space or stock was devoted to non-adult fare. By 2001, empirical evidence suggested that many businesses were exploiting the exception through “sham compliance,” prompting the City to tighten the definitions. The plaintiffs—fourteen entities operating or leasing space to strip clubs and adult bookstores—brought both facial and as-applied constitutional challenges, which the Southern District of New York (Liman, J.) rejected after a bench trial (689 Eatery Corp. v. City of New York, 716 F. Supp. 3d 88 (S.D.N.Y. 2024)).

On appeal, the plaintiffs contended that the 2001 amendments violate the Free Speech Clause of the First Amendment, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Second Circuit summarily affirmed, concluding that the amendments remain a valid content-neutral, time-place-and-manner regulation aimed at mitigating “secondary effects” of adult enterprises. Although the opinion issues as a “summary order” (and therefore lacks formal precedential force under Local Rule 32.1.1), its reasoning consolidates and clarifies earlier Second Circuit and Supreme Court doctrine, offering important guidance to municipalities and adult-business litigants alike.

Summary of the Judgment

First Amendment. The court ruled that the 2001 amendments neither ban adult entertainment altogether nor target speech content; instead, they permissibly address adverse “secondary effects” (crime, property devaluation, urban blight). The City demonstrated a substantial governmental interest and provided ample alternative locations—over a thousand lots—for the affected businesses.
Equal Protection. Because the ordinance survived heightened First-Amendment scrutiny, any remaining equal-protection claim was subject only to rational-basis review, which the City easily met.
Substantive Due Process. Plaintiffs’ due-process theory merely repackaged the First-Amendment claim. Under the “Graham doctrine,” the specific First-Amendment framework controls; no separate substantive-due-process violation was shown.
Outcome. The district court’s judgment in favor of the City was affirmed in all respects.

Analysis

Precedents Cited

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) – Established the “secondary-effects” doctrine and the three-step framework for evaluating adult-use zoning: (1) ban vs. displacement; (2) content-neutral objective; (3) substantial interest + adequate alternatives.
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) – First recognized municipal power to mitigate adverse community effects of concentrated adult establishments.
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) – Confirmed cities may rely on studies—even if disputed—as a reasonable basis for believing adult uses cause secondary effects.
Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998) – Upheld NYC’s 1995 zoning scheme and supplies the Second Circuit’s binding construction that the City’s evidence and available relocation sites satisfy constitutional standards.
For the People Theatres of N.Y., Inc. v. City of New York, 29 N.Y.3d 340 (2017) – New York Court of Appeals’ state-law validation of the same 2001 amendments, providing persuasive authority on the illusory nature of “60/40 compliance.”
Other notable citations: TJS of N.Y., Inc. v. Town of Smithtown, 598 F.3d 17 (2d Cir. 2010); Clementine Co., LLC v. Adams, 74 F.4th 77 (2d Cir. 2023) (rational-basis review when no First-Amendment violation).

Legal Reasoning

The panel (Judges Menashi, Pérez, and Nathan) applied the classic Renton test.

Nature of the Regulation. The amendments do not impose a blanket ban; they only dictate permissible zones and required buffers.
Content-Neutrality. Although the ordinance singles out adult establishments, the City’s objective is to curb effects, not expression. The opinion stresses that the City’s reforms targeted “superficial and sham compliance” with the 60/40 exception—businesses adding boxes of non-adult media or unused billiards rooms to skirt regulation. That finding removes any suspicion of viewpoint discrimination.
Substantial Interest & Alternatives. The City produced updated mapping showing 1,000+ potential relocation sites, including 204 simultaneously usable parcels. Combined with decades of empirical studies, this evidence satisfied the requirement that reasonable alternative channels for adult speech remain available.
First Amendment Overbreadth. Plaintiffs failed to prove that the ordinance restricts a “substantial amount” of protected speech relative to its legitimate sweep (U.S. v. Williams, 553 U.S. 285 (2008)).
Equal Protection. Because adult businesses are not a suspect class and First-Amendment scrutiny was already passed, rational-basis review applied. The linkage between zoning and secondary effects readily cleared that low bar.
Substantive Due Process. Under Graham v. Connor and its progeny, when a more specific constitutional standard exists (here, the First Amendment), courts must analyze the claim under that standard, foreclosing separate substantive-due-process relief.

Impact of the Judgment

Practical Guidance for Municipalities. The ruling signals that cities may tighten adult-use definitions to address evasive tactics, provided they gather reasonable evidence, map alternative sites, and articulate secondary-effects objectives.
Doctrinal Consolidation. Even as a non-precedential order, the opinion synthesizes Supreme Court and Second Circuit caselaw, reinforcing that mere “percentage tests” (like the 60/40 rule) are not constitutionally compelled.
Litigation Strategy. Adult-business plaintiffs now face an uphill battle attacking zoning amendments where the municipality can (i) document “sham compliance,” and (ii) present GIS mapping of ample relocation parcels.
Equal-Protection & Due-Process Theories Weakened. The court’s swift rejection of standalone Fourteenth-Amendment claims underscores the difficulty of re-packaging failed speech arguments into alternative doctrinal wrappers.
State-and-Federal Harmony. The Second Circuit’s analysis dovetails with the New York Court of Appeals’ state-law decision in For the People Theatres, creating a largely unified body of law on NYC adult-use zoning across jurisdictions.

Complex Concepts Simplified

Content-Neutral Time-, Place-, and Manner Regulation: Rules that do not prohibit speech based on what it says (content) but on where, when, or how it occurs. Such rules are constitutional if they serve an important public interest and leave open adequate alternative avenues for communication.
Secondary-Effects Doctrine: The legal fiction that allows governments to regulate adult speech by focusing not on the speech itself, but on perceived negative side-effects (crime, property decline). Originated in Renton.
Facial Challenge vs. As-Applied Challenge: Facial: Asserts a law is invalid in all circumstances. Requires showing substantial overbreadth.
As-Applied: Claims the law is unconstitutional in the specific context of the plaintiff’s situation.
Rational-Basis Review: The most deferential judicial standard. A law will be upheld if any conceivable legitimate purpose could support it and the means are rationally related to that purpose.
Graham Doctrine (Specific Constitutional Provision Rule): Courts analyze claims under the most directly applicable constitutional provision rather than a general substantive-due-process rubric.

Conclusion

The Second Circuit’s decision in 59 Murray Enterprises v. City of New York reaffirms, in unequivocal terms, that municipalities retain broad—but not unlimited—authority to regulate the location of adult businesses under the secondary-effects doctrine. By validating the 2001 abolition of the “60/40” loophole, the court clarified that percentage-based exemptions are policy choices, not constitutional mandates. Provided a city marshals reasonable evidence, crafts geographically limited restrictions, and preserves ample alternative sites, zoning aimed at the nuisances of adult establishments will withstand First-Amendment, Equal-Protection, and Due-Process scrutiny. While issued as a summary order, the reasoning reflects—and will likely influence—future case law, offering a practical roadmap for local governments navigating the perennial tension between protected expression and community welfare.