Sex Out of the City?

The ‘Times’ Reenters the Porn War

The New York Times company has always made a point of celebrating the New Year. Almost 100 years ago, publisher Adolph S. Ochs began dropping a lighted ball from his Times Square tower on New Year's Eve. (The tradition continues, though the company moved to an annex on 43rd street in 1913.)

This past January 1, the Times celebrated again, by reporting on the front page that Giuliani is resuming his battle with the city's sex shops. The zoning push is good news for the paper, given the lingering presence of porn along Eighth Avenue, where the Times Company plans to relocate its headquarters once again in 2005.

Last week's story, by Dan Barry, declared the city's sex shop zoning law a lemon, thanks to a "death blow" of a decision by the New York State Court of Appeals in 1999. While the city attributes the survival of retail sex within its borders to satanic ingenuity, the court called the law a vaguely worded attempt at censorship. Pornography, saved by the First Amendment? How ironic!

The Times has given the sex shop law lavish coverage since it was passed in 1995, including a series of editorials backing the city and castigating the shops for their efforts to undermine a worthy cause. In article after article, the Times gave First Amendment arguments short shrift, at times mocking them as "comic" and "existential."

"This is the greatest city in the world, and to large measure its greatness is attributable to its tolerance for unorthodox views," says Herald Price Fahringer, the lawyer who successfully represented a coalition of city sex shops. Porn is a "protected class of information that the public has a right to have access to," he says, but when the high court reviewed the law, "it was patently clear that Giuliani was trying to shut these places down." Fahringer respects the Times, but found the paper's editorials disappointing. "Perhaps because of their location, they didn't stand with us at all."

To be sure, the Times defends the First Amendment whenever a proposed state action threatens the paper's ability to do business. For example, in 2000, the Times editorialized against a bill that would expand the scope of classified information, and warned that a pending Supreme Court case might penalize the media for disclosing information illegally obtained by a third party. (Publication of the Pentagon Papers relied on the Times' right to do exactly that.)

On the porn issue, the Times had to know what it was getting into. In 1996, the newspaper's own outside counsel, Floyd Abrams, called the sex shops' First Amendment claim potentially "very serious." But the Times seems loath to publish an opinion piece defending the retailers' right to sell porn, or an editorial disclosure that the company's real estate interests might influence its stance on sex shops.

Lurking behind the porn story is a behemoth resolution: the plan to move the Times Company headquarters from 229 West 43rd to an imaginary skyscraper on the east side of Eighth Avenue between 40th and 41st streets. The site, across from Port Authority, is part of the 42nd Street Development Project, which means the company will get considerable tax breaks in exchange for developing it. But the company's board of directors has yet to approve the plan.

Here's one hitch: The site is currently occupied by a string of sex shops, as is a stretch of Eighth Avenue between 42nd and 44th streets. In order to desex its new site, the company will rely on Empire State Development, a state entity with the power to condemn property. But first, the Times has to negotiate a lease with the city and state, which it hopes to sign this spring. After that, either the tenants agree to sell, or the state asks a judge to determine a fair price. If all goes according to plan, the current tenants will be gone by fall 2001—and next New Year's, the biggest spherical attraction in Times Square will be the wrecking ball.

The Times Company has been instrumental in a decade of cleansing Times Square. In January 1992, newly crowned Times publisher Arthur Sulzberger Jr., founded the Times Square Business Improvement District, a/k/a the BID. Made up of area businesses, the BID is funded by a tax that increases as the members' property values increase. Early BID meetings were held at 229 West 43rd, and the first president was a strident anti-porn crusader.

"Real estate values are driven closely by a healthy retail and business environment," says current BID president Brendan Sexton. But in the 1980s, when there were "34 porn businesses on a single block . . . property values fell to pieces." No wonder BID members teamed up. In 1996, Cravath, Swaine & Moore, a law firm located on Eighth Avenue, intervened pro bono on behalf of the BID in the sex battle. Needless to say, they weren't arguing in favor of free speech.

Of course, the real bogeyman of Times Square is the Disney Company, which paid $8 million in 1993 to renovate a theater on a block of 42nd Street between Seventh and Eighth that was once dominated by pimps and drug dealers. As part of the deal, the state agreed to evict the peep shows from the block. A few years earlier, Cravath insisted as part of its real estate deal that the city close down the Adonis Theater, a former gay mecca on Eighth Avenue.

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