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.


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.