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.
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.