When a commercial activity requires a license or permit from a government, can a state use this authority to regulate ‘‘expression’’ even if aspects of the conduct do not meet the Roth standard of obscenity?
In 1970, the California Department of Alcoholic Beverage Control promulgated rules regulating entertainment in businesses serving alcoholic beverages. On the basis of legislative findings that the ‘‘gross sexuality’’ of topless or bottomless dancing in bars and nightclubs encouraged sexual encounters between the performers and customers, as well as sex crimes and prostitution outside the businesses, California’s regulations prohibited live or filmed sexual entertainment that included performances or simulations of specific sexual acts. A three-judge federal district court struck down the regulation as unconstitutional, because some of the proscribed entertainment was not obscene.
This is the Court’s first major obscenity decision in which the four Nixon nominees (Burger, Blackmun, Powell, and Rehnquist) participated. In a 6:3 decision reversing the lower court, Rehnquist, writing for the majority with Steward and White joining the four Nixon nominees, does not focus on whether nude dancing could be obscene but rather on its harmful, secondary effects in establishments selling alcoholic beverages and whether state licensing power could regulate nude dancing to minimize its effects. Thus, he did not use the heightened tests usually associated with the ‘‘preferred freedoms’’ of the First Amendment. Instead, he notes the regulations dealt with bars and nightclubs selling liquor, not ‘‘a dramatic performance in a theater.’’ He thus uses a rationality test to the department’s regulations that are not unreasonable in light of the legislative findings and the questionable effectiveness of other options.
The lynchpin of the LaRue decision was Rehnquist’s view that the ‘‘broad sweep’’ of the Twenty-first Amendment conferred ‘‘something more than the normal state authority’’ over public health and morals. This amendment gave the states power to regulate the sale of alcohol, authority that, according to Rehnquist, outweighed any First Amendment interest in nude dancing. Brennan, and especially Marshall, attacked Rehnquist’s view in their dissents. In subsequent cases dealing with nude dancing and liquor licensing, for example, New York State Liquor Authority v. Bellanca (1981) and City of Newport, Kentucky v. Iacobucci (1986), both per curiam opinions resting on LaRue, Stevens, who joined the Court after LaRue was handed down, wrote dissenting opinions, launching a campaign challenging Rehnquist’s view of the Twenty-first Amendment, which provided a fortuitous way of upholding California’s regulations without having to directly address the relationship between nude dancing and the First Amendment.
Finally, in 1996, the Supreme Court in 44 Liquourmart, Inc. v. Rhode Island (1996) with Stevens writing for the majority disavowed the reasoning in LaRue without questioning, however, its holding. According to Stevens, the result in LaRue would have been the same if the majority had not relied on the Twenty-first Amendment. States, he argued, with their inherent police powers have ample authority to regulate the sale of alcoholic beverages to avoid ‘‘bacchanalian revelries.’’ Equally important, the Twenty-first Amendment, Stevens wrote, does not allow states to ‘‘ignore their obligations’’ under other provisions of the Constitution, nor does it ‘‘in any way diminish the force of the supremacy clause.’’
ROY B. FLEMMING
Cases and Statutes Cited