Stripping Clubs of Their Rights—Zoning, Liquor Licenses, Adult Businesses, and the First Amendment, Part Two

Puppers and doggos, welcome to the second part of our dive into strip clubs and the First Amendment. Last week we talked about Flashers, a strip club in Sandy Springs, GA, which was shut down after challenging a city ordinance all the way to not one, but two Supreme Courts.

SO. WHAT’S UP?

We have two cases, federal and state, which the strip club Flashers and its cohorts brought against the City of Sandy Springs, claiming that its ordinance against sale of alcohol at adult establishments was an unconstitutional restriction of the First Amendment right of free speech.

NO.

Yeah, seriously. This is Part Two of Two, so you should know this already. Go read Part One here and come back.

…ready? Okay. Let’s take a look at these two cases.

The state court case is Maxim Cabaret, Inc. d/b/a Maxim Cabaret et al. v. City of Sandy Springs, Georgia, No. S18A0496 (Ga. June 18, 2018). The federal case is FLANIGAN’S ENTERPRISES, INC. OF GEORGIA, d.b.a. Mardi Gras, FANTASTIC VISUALS, LLC, d.b.a. Inserection, 6420 ROSWELL RD., INC., d.b.a. Flashers, and MARSHALL G. HENRY, et al. v. CITY OF SANDY SPRINGS, GEORGIA, No. 16-14428 (11th Cir. August 14, 2017).

The Fulton County Superior Court granted summary judgment to the City of Sandy Springs, ruling that Flashers (herein referred to by its parent company’s name, Maxim Cabaret) lacked standing to challenge Sandy Springs’ alcohol licensing regulations on a constitutional basis. Simply, the court thought Flashers had no valid legal argument to make, and Sandy Springs won. The same thing happened in federal court.

OKAY, WHAT LAWS APPLY HERE?

There are two laws at play: (1) Sandy Springs Adult Licensing Code section 26-21(25), restricting the “commercial combination of live nudity and alcohol,” and (2) the good ol’ First Amendment.

The Adult Licensing Code section reads:

The city council further finds that public nudity (either partial or total) under certain circumstances, particularly circumstances related to the sale and consumption of alcoholic beverages in establishments offering live nude entertainment or “adult entertainment,” whether such alcoholic beverages are sold on the premises or not, begets criminal behavior and tends to create undesirable community conditions. In the same manner, establishments offering cinematographic or videographic adult entertainment have the same deleterious effects on the community. Among the acts of criminal behavior found to be associated with the commercial combination of live nudity and alcohol consumption or sale, live commercial nudity in general, and cinematographic or videographic adult entertainment are disorderly conduct, prostitution, public solicitation, public indecency, fighting, battery, assaults, drug use and drug trafficking. [Citations omitted.]

In its entirety, the First Amendment to the Constitution reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We’re focusing on the “free speech” element of the First Amendment. That’s right, nude dancing is considered free speech as a form of expressive conduct under the First Amendment. 1

THE GOV’MINT CAN’T RESTRICT FREE SPEECH!

Bad news, folks, they can—where, when, and how you exercise your free speech can have reasonable limitations placed on them. 2

REASONABLE IS A WEASEL WORD.

Yes, but SCOTUS has your back with definitions here. When the government restricts rights guaranteed by the Constitution, what’s “reasonable” falls into three categories, based on the right being restricted. 3 They are, in order of increasing severity:

  • Rational basis review—A heck of a lot is reasonable. If a law is rationally related to a legitimate government interest, it’s constitutional.
  • Intermediate scrutiny—If a law furthers an important government interest, by means which are substantially related to that interest, it’s constitutional.
  • Strict scrutiny—If a law is narrowly tailored to serve a compelling government interest, and uses the least restrictive means to do so, it’s constitutional. Not a lot of laws survive strict scrutiny.

WHICH STANDARD APPLIES HERE?

I bet I’ll tell you. Flashers said that strict scrutiny applied, but they would, wouldn’t they? Too bad for them this is settled case law. If the law is content-neutral, i.e., it doesn’t seek to limit freedom of expression based on the content of the speech, then only intermediate scrutiny applies. 4 That law survives intermediate scrutiny if it furthers important government interest unrelated to the suppression of speech, and the incidental restriction of protected speech is no greater than necessary to further that interest. 5

What that means is that the government can’t ban speech entirely, just in certain forms, in certain locations, and/or at certain times. This is the rationale behind such limiting legislation as requiring parade permits or not allowing flag burning near schools. The speech isn’t the target of the legislation in these cases, the secondary effects are—like traffic congestion or damage to school grounds and/or children.

To bring it back around to our case, the government can pass legislation limiting free speech as, ahem, embodied by adult entertainment, but only as much as necessary to target the negative secondary effects of such businesses. You know, like prostitution, drug sales, drunk driving, people leaving their underwear around. 6

Sure, preventing the sale of alcohol means that business will dry up with the booze, but the ordinance targets alcohol, not nude dancing—the dancers are still “free to express themselves as they wish through dance or otherwise.” 7 The ordinance is therefore content-neutral, so intermediate scrutiny applies. Since the dancers are still able to dance, the restriction on freedom of expression is minimal at most, and the government’s important interest in not finding abandoned underwear in the parking lot is served, therefore the ordinance passes intermediate scrutiny and is constitutional.

I’M IMPRESSED YOU DIDN’T SAY “PASSES THE INTERMEDIATE SCRUTINY SNIFF TEST” THERE.

Me too. I’m a model of restraint.

SO THAT’S IT? NO MORE STRIP CLUBS?

None with booze, anyway. Hope you have an unlimited data plan as you walk to the package store.

Till next time, readers, there’s no law that says I can’t express myself freely in the comfort of my own home with the curtains drawn. You can draw your own conclusions.

Sit. Stay. Speak.


Stripping Clubs of Their Rights—Zoning, Liquor Licenses, Adult Businesses, and the First Amendment, Part One

Last time was a nice, gentle toe into the warm, shallow waters of law. Get your swim caps and flippers on, because this time, we’re diving into the deep end with strip clubs and the First Amendment.

1. She Getting Crunk in the Club, I Mean She Work.

Strip clubs are great–they’re Petri dishes for Constitutional arguments. They take what would ordinarily be a straightforward case of municipal zoning ordinance appeal and turn it into a twelve-year web of intertwined First Amendment lawsuits. That’s right–adult entertainment is and has been the vanguard of your right to freedom of expression. Think about that next time you decide how much to tip.

Let’s get concrete. This is Flashers, an adult entertainment facility.

Flashers is closed.

Let’s take a look at some reviews:

“Very small intimate, a lot of variety!”

“If you must go, do not buy drinks or anything else with a credit card.”

“The employees were having there [sic] own conversation and didn’t even acknowledge us.”

Quality of experience aside, Flashers is important as one of four adult businesses targeted by the City of Sandy Springs, GA. The others were the strip clubs Mardi Gras and Main Stage/The Coronet Club, and Inserection, an adult bookstore and novelty item emporium. These four businesses took their fight to both the Georgia and United States Supreme Court on First Amendment grounds, lost, and face closure. Let’s look at how we got here.

2. ATL Sorry, Done Disrespect It.

Flashers was issued a liquor license by Fulton County prior to the City of Sandy Springs forming in 2005. Upon its formation, Sandy Springs quickly surveilled the adult businesses within its city limits, and found evidence of prostitution and, perhaps less surprisingly, public lewdness and intoxication. After these findings, Sandy Springs issued ordinances banning the sale of alcohol at adult establishments and limiting the areas in which adult businesses could operate.

Some of you reading are shaking your heads knowingly at this point, but for the rest of you, liquor is what makes strip clubs work. Without it, money doesn’t exchange hands. There’s this thing called the internet, it turns out, and you can find just about any specific point of appeal for free within minutes, so to get people to spend money on titillation takes some judicious application of lubricant in the form of liquor. Taking away a strip club’s liquor license kills the strip club.

Obviously, Flashers took these ordinances as an attack, and did what any adult business would do–allied with other adult businesses and filed lawsuits in state and federal court to challenge the constitutionality of the ordinances as attacks on the First Amendment right to freedom of expression. And truly, Mardi Gras, Main Stage/The Coronet Club, and Inserection stood tall and proud as allies in a long, stiff fight.

3. To the Window, To the Wall, To the Supreme Court.

By December 2011, neither the federal nor state court cases had reached a conclusion, and Sandy Springs was losing its patience. Sandy Springs filed a civil suit against each of the four adult businesses for habitual violations of the city’s vice ordinances. The city made its intentions clear by seeking an injunction to shut down each business for another violation. It was, as they say, on, but far from over.

Five years later, the federal suit ended with a ruling in Sandy Springs’ favor, upholding the ordinances and declaring them constitutional. The appeal affirmed the judgment. 1 Flashers and their colleagues appealed again to the Supreme Court of the United States, which declined to hear the case.

Meanwhile, the state court was singing the same song. The case was appealed all the way to the Georgia Supreme Court. 2 The city ordinances were upheld.

4. Get Low.

Inserection managed to stay open–in a related and somewhat intertwined case, Inserection managed to have a city ordinance banning the sale of sex toys overturned. 3 They are, as of this writing, still in business, and their shopping center has a new liquor store to complement Inserection’s services. So there’s that.

However, the clubs fared worse. By September 2018, the clubs had exhausted their appeals, and were forced to comply with the city ordinances after twelve years. Unable to serve alcohol, management decided that the clubs were no longer able to turn a profit and shut down. Flashers filed a federal suit against Sandy Springs for an allegedly illegal 2016 search and shutdown, but given that the club has closed, the case is academic.

Speaking of academic, now that you have the history of this case, next week we’ll go into what exactly the courts decided, and how zoning and alcohol ordinances affect First Amendment rights. Until then, sit. Stay. Speak. Good dog.


Further reading:

  1. CITY OF RENTON ET AL.v. PLAYTIME THEATRES, INC., ET AL., 475 U.S. 41 (1986) and CITY OF LOS ANGELES v. ALAMEDA BOOKS, INC., et al., 535 U.S. 425 (2002). My Property Law class managed to discuss these similar zoning-of-adult-business cases entirely in euphemisms and double entendre to protect the innocence of my classmate’s young daughter, of whom he had custody that evening.
  2. Christian Boone, “Sandy Springs suit puts strip clubs ‘on notice,'” The Atlanta Journal-Constitution, December 15, 2011, https://www.ajc.com/news/local/sandy-springs-suit-puts-strip-clubs-notice/2nst56bD85FVFQ81Wy3o8J/.
  3. Arielle Kass, “Georgia Supreme Court hears Sandy Springs strip club case,” The Atlanta Journal-Constitution, March 05, 2018, https://www.ajc.com/news/local-govt–politics/georgia-supreme-court-hears-sandy-springs-strip-club-case/o57MvFBXZARziqABTBlyuI/.
  4. Bill Rankin, “Court: Sandy Springs can ban alcohol sales at strip clubs,” The Atlanta Journal-Constitution, June 18, 2018, https://www.ajc.com/news/crime–law/court-sandy-springs-can-ban-alcohol-sales-strip-clubs/vw6x8W2ng8SrbkRtcp3SrK/.
  5. Arielle Kass, “Three strip clubs close in Sandy Springs after 12-year legal battle,” The Atlanta Journal-Constitution, September 14, 2018, https://www.ajc.com/news/local-govt–politics/three-strip-clubs-close-sandy-springs-after-year-legal-battle/NBtbgdypc2AhvY3KEGBpGP/.
  6. Arielle Kass, “DEEPER FINDINGS: With nude dancing shuttered in Sandy Springs, one club fights back,” The Atlanta Journal-Constitution, December 21, 2018, https://www.ajc.com/news/local-govt–politics/with-nude-dancing-shuttered-sandy-springs-one-club-fights-back/W1BPvjY7E6sfUQ4eOXqwkK/.

What We Talk About When We Talk About Law—United States Sources of Law

Hello, my wee pups, and join me for a breakdown of what I mean when I say “the law.”

We’re just covering United States federal law here, for simplicity’s sake. 1 This is purely for informational purposes and shouldn’t be construed as legal advice, and it’s an introduction at the most. They have entire grad schools just for explaining this stuff in enough depth to do anything with it.

In the United States, law comes from four primary sources: the Constitution, statutes, administrative law, and case law/common law. I’ll explain each briefly and where each party making these laws gets the right to do so, and I’ll link places you can find these laws to read for yourself.

1. The Constitution

First is the Constitution. It lays out the fundamental explicit powers of each branch of federal government and leaves the groundwork for implicit powers, as interpreted by the Supreme Court (see the section on case law below). Broadly speaking, if a government actor wants to take an action, e.g., pass a law, they have to derive the authority to do so from the Constitution, either explicitly or implicitly. In practice, this means that broadly speaking, if the Constitution or SCOTUS don’t say the federal government can do something, they can’t do it. There’s quite a lot of argument over the last two centuries over SCOTUS’ takes on implicit powers, so federal power has varied wildly over the course of its existence. The trend since the Civil War and the Great Depression has been to interpret the Constitution to allow the federal government more authority.

2. Statutes

The second body of law are statutes, as enacted by Congress. Established in Article I of the Constitution, Congress has its explicit powers did noted in article 1, section 8. I mentioned federal authority has greatly expanded as SCOTUS’s interpretation of the Constitution evolves—the understanding of what falls under the heading of “interstate commerce” and “tax” especially have expanded. 2

Federal legislation, once passed by Congress and signed or veto–overridden, is sent to the Office of the Federal Register, numbered, and published as slip law. 3 Slips are compiled at the end of each Congressional session and published as session law in the Statutes at Large. Slip and session laws are numbered and arranged chronologically in order of enactment.

Every six years, the House of Representatives’ Office of the Law Revision Counsel compiles general and permanent session law, organizes it by subject, and amends or revises the relevant Title of the United States Code. The USC is currently divided into 54 Titles by subject (with Title 53 reserved). Supplements are released annually between new additions. Not all slip and session laws are codified; private laws (as opposed to public laws) and time-limited legislation like annual budgets are not included in the USC. The United States Code is available online at uscode.house.gov or at www.law.cornell.edu/uscode/text.

3. Administrative Law

Third is administrative law and regulation, as promulgated by the executive branch under the president. 4

Administrative law is the body of rules and regulations set up by an administrative body, plus any executive orders or proclamations of the president. This all comes from the executive branch, which, if you remember your Constitution, doesn’t explicitly have the ability to pass law, so they get the authority to do so either by exercising a Constitutional power granted to the president and executive branch, or through a statutory grant of the authority by Congress in what’s called an “enabling act.” 5

Once an administrative body like the EPA gets the authority to pass regulations, it does so according to the requirements of the Administrative Procedure Act, a statute found at 5 USC § 551–559. Part of the requirements include a notice period where proposed regulations are presented to the public to allow commentary and discussion by the people to be affected by the proposed regulation. 6

Proposed and final regulations are published for public viewing in the Federal Register, a daily publication of governmental rules, regulations, and rulings. 7

Regulations are compiled annually from the Federal Register into the Code of Federal Regulations, or CFR. 8 The CFR basically stands as the equivalent to the United States Code, but for admin law instead of statute.

Executive orders, proclamations, and Executive Office of the President regulations are also published in the Federal Register and CFR. 9

More information on a specific administrative body, including internal structure, points of contact, how to make freedom of information act request, and other information can be found through the United States Government Manual. 10 Think of it like your car’s owner’s manual—if you see certain lights or alarms going off, it should tell you who to contact to get it taken care of.

4. Case Law

The fourth source of law is case law.

Case law and common law set precedent for enforcement and interpretation of statute and administrative law through the principle of stare decisis, or standing “by that which is already decided.” 11 12

All Supreme Court precedent is mandatory for inferior courts; Court of Appeals precedent is mandatory in its own circuit and merely persuasive in another circuits. District Courts are the federal-level trial court—the entry point into the court system—and set precedent only within their own jurisdiction. All other jurisdictions may find a persuasive but not mandatory.

There are federal and state level courts, and courts of varying jurisdiction on every level, so this is extremely cursory. Case law is constantly being updated because criminal and civil courts are always full, and there are a metric truckload of courts. I’ll revisit the topic of courts, because they’re a rich topic that I can’t cover in a quarter of a post.

There are a number of paid and free sources for keeping up with case law, and holy wars have broken out among lawyers over which of the paid services is the One True Source of Case Law. 13 For everyone else, Google Scholar keeps a relatively up-to-date, free to search and view legal database. I wouldn’t trust my life to it being totally up-to-date, But for preliminary research, it’s helpful.


I threw a lot of information at you today, and there’s a lot of reading you can do after this. My goal here was not to exhaustively explain every aspect of government, but to point you in a direction where you could find out from more on your own. 14 A responsible citizen is an informed citizen.

Until next time, sit. Stay. Speak. Good dog.


Copyright Holders Can’t Tell Me What to Do!—Some Limits on the Exclusive Rights of Copyright Holders

My dogs, I return with a law post. Thanks to Sam Castree III (@indiegamelawyer on Twitter) for help researching this one.

I was asked on Twitter whether a copyright holder can keep you from selling copies of works that you bought. Basically, if you don’t own the copyright on a textbook, can the holder stop you from selling your copy?

Before we get started, my usual disclaimer applies: this is not legal advice; it’s basic information provided for an educational purpose, so I better not hear anyone relying on this post and solely this post when making any big decisions. Pay a lawyer, get specific and tailored legal advice.

That said, the Copyright Act limits a copyright holder’s exclusive rights to six specific points, enumerated in section 106. Copyright holders have the exclusive right:

  1. to reproduce the copyrighted work in copies or phonorecords;
    to prepare derivative works based upon the copyrighted work;
  2. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  3. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  5. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106.

That’s why YouTube demonetizes videos with music and why Twitch will mute streams with music playing. If you want to broadcast a song you don’t own, you need a license. Since YouTube and Twitch don’t want to be sued for hosting your unlicensed work, they’ll shut you down proactively. Same requirement of a license applies if you want to perform a script publicly; likewise, fanfiction is out without the copyright holder’s consent.

How this plays out practically can vary wildly. Copyrights are only enforced insofar as the holder brings action to enforce them. This can range from the copyright holder sending a cease-and-desist to hiring the copyright infringer to work on the original IP.

“But Buddy, that doesn’t answer my question! I sold my old video games and textbooks—can the copyright holder stop me?”

Good thought—always question power until you find its limits. 106(3) above says that selling copies of a copyrighted work is an exclusive right of the copyright holder, right?

Actually, no. Copyright holders can’t restrict a secondary market based on copyright1.

Assuming you acquired your copy of a copyrighted work legally—you did, didn’t you?—you are allowed to sell or dispose of that copy. This is called the first-sale doctrine, codified in Section 109 of the Copyright Act; after the copyright holder transfers a copy of a work to you, they don’t have the right to prevent you from selling, donating, destroying, or otherwise desecrating that copy2. So sell your old games and textbooks, there’s nothing to stop you if you got them legally. You aren’t selling anything more than the copy you legally own3.

Incidentally, I used to work in a university bookstore, and I was one of the people working textbook returns. The company stocking the bookstore makes decisions based on advance sales for next year, new edition publication schedules, and a complex batch of local and regional sales data to determine what they’ll take back and what they won’t. The person at the desk has literally no control and no more information than you, and no ability to appeal for you. So chill. Rent ‘em if you don’t want the risk of keeping them.

If you have any questions about the law or just want to say hi, feel free to reach out on Twitter or email. Until then, sit. Stay. Speak. Good dog.