California v. LaRue
93 S. Ct. 390, 409 U.S. 109, 1972 U.S. LEXIS 128 (1973)
Rule of Law:
The Twenty-first Amendment grants states broad authority to regulate the sale and consumption of alcoholic beverages, an authority that can justify regulations affecting forms of expression in liquor-licensed establishments that might otherwise be protected by the First and Fourteenth Amendments.
Facts:
- The California Constitution grants the Department of Alcoholic Beverage Control primary authority for licensing and regulating the sale of alcoholic beverages, including the power to suspend or revoke licenses if deemed contrary to public welfare or morals.
- In 1970, the Department held public hearings and received testimony regarding a progression from “topless” to “bottomless” dancers and other forms of “live entertainment” in licensed bars and nightclubs.
- Witnesses described numerous incidents in these establishments, including customers engaging in oral copulation with female entertainers, public masturbation, and placing currency into entertainers' vaginas.
- Prostitution, indecent exposure, attempted rape, rape, and assaults on police officers were reported to have occurred on or immediately adjacent to such licensed premises.
- Following these hearings, the Department promulgated rules regulating the type of entertainment permitted in bars and nightclubs it licensed.
- These rules prohibited acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any sexual acts prohibited by law.
- The regulations also prohibited the actual or simulated touching, caressing, or fondling of the breast, buttocks, anus, or genitals, and the displaying of pubic hair, anus, vulva, or genitals.
- Additionally, the rules banned the displaying of films or pictures depicting any of the aforementioned prohibited live performances.
Procedural Posture:
- Appellees (holders of liquor licenses and dancers) brought an action in the United States District Court for the Central District of California, seeking a declaratory judgment and injunction against the Department of Alcoholic Beverage Control's newly promulgated rules.
- A three-judge District Court was convened to hear the case.
- The District Court majority held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.
- The District Court enjoined the enforcement of the challenged regulations.
- Appellees unsuccessfully sought discretionary review of the Department's regulations in both the State Court of Appeal and the Supreme Court of California.
- The Department (appellants) then joined with appellees in requesting the three-judge District Court to decide the merits of appellees’ claims that the regulations were invalid under the Federal Constitution.
- The Supreme Court of the United States noted probable jurisdiction for direct appeal from the three-judge District Court.
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Issue:
Does the Twenty-first Amendment, in conjunction with a state's general police power, grant a state the authority to regulate sexually explicit live entertainment and films in establishments licensed to sell alcoholic beverages, even if such regulations might otherwise proscribe some forms of expression protected by the First and Fourteenth Amendments?
Opinions:
Majority - William Rehnquist
Yes, the Twenty-first Amendment, combined with the State’s police power, authorizes California to regulate sexually explicit live entertainment and films in establishments licensed to sell alcoholic beverages, even if some of these regulations might otherwise proscribe forms of expression protected by the First and Fourteenth Amendments. The Court acknowledged that while motion pictures and theatrical productions receive First and Fourteenth Amendment protection, the scope of permissible state regulation significantly increases when the expression involves public acts potentially violating valid penal statutes, especially in businesses licensed to sell liquor. The Twenty-first Amendment confers “something more than the normal state authority over public health, welfare, and morals,” strengthening the justification for such state regulation, though it does not completely supersede other constitutional provisions. Given the extensive evidence from hearings detailing sexual misconduct, prostitution, and violence in licensed premises, the Department’s conclusion that lewd entertainment and liquor sales should not coexist was deemed rational. The state's decision to implement a prophylactic solution—banning certain acts—rather than requiring its personnel to judge individual instances of inebriation, was also considered a reasonable exercise of its regulatory authority. The regulations specifically proscribe these performances only in liquor-licensed establishments, a context where the State's Twenty-first Amendment authority is significantly broader.
Concurring - Potter Stewart
Yes, a state's broad power under the Twenty-first Amendment to control liquor distribution justifies regulations prohibiting certain grossly sexual exhibitions where liquor is dispensed, without violating the First and Fourteenth Amendments. Justice Stewart emphasized that the Twenty-first Amendment grants states extensive power to specify the times, places, and circumstances for liquor dispensing. He reasoned that such regulations are akin to prohibiting liquor sales in bookstores or near churches, which control liquor distribution without interfering with First Amendment activities. Therefore, the regulations, on their face, do not violate the First and Fourteenth Amendments, although he cautioned that the Twenty-first Amendment does not permit entirely irrational or invidiously discriminatory state actions or override all other constitutional provisions.
Dissenting - William O. Douglas
No, the District Court should have declined to adjudicate the merits of the constitutional claim until the generalized rules were given particularized meaning through actual application, rather than ruling on their constitutionality 'on their face.' Justice Douglas argued that deciding on the facial constitutionality of these rules, without any specific application to licensees, forces the Court to deal with them in the abstract. He cited precedents like Electric Bond & Share Co. v. SEC and Federation of Labor v. McAdory to support the principle of avoiding constitutional rulings based on hypothetical situations or before state courts have construed their own statutes. While acknowledging the general distinction between 'expression' and 'conduct,' he pointed out that the Court cannot know how broadly or narrowly these rules will be applied and that certain protected performances (like a Shakespearean play potentially involving 'fondling') should not become illegal merely because they occur in a beer garden.
Dissenting - William J. Brennan Jr.
No, the California regulation imposes an unconstitutional condition on the grant of a liquor license by compelling licensees to forgo First Amendment rights, and the Twenty-first Amendment does not authorize such a deliberate inhibition of protected expression. Justice Brennan asserted that the regulation explicitly applies to some speech protected by the First Amendment. He argued that neither the language nor the history of the Twenty-first Amendment empowers states to use their liquor licensing authority as a mechanism to deliberately suppress protected, even if distasteful, forms of expression. He concurred with Justice Marshall's view that the State had improperly placed an unconstitutional condition on the granting of a license, citing relevant precedents such as Perry v. Sindermann, Sherbert v. Verner, and Speiser v. Randall.
Dissenting - Thurgood Marshall
No, the regulations are unconstitutionally overbroad on their face, suppressing both unprotected obscenity and clearly protected speech, and the Twenty-first Amendment does not permit such a broad stifling of First Amendment freedoms. Justice Marshall contended that the California rules do not conform to the Roth-Memoirs obscenity standards because they establish per se prohibitions on certain acts and body parts regardless of context, failing to require judgment of the material as a whole, prurient interest, offensiveness to community standards, or lack of redeeming social value. He distinguished the case from United States v. O’Brien, arguing that movies and live performances are prima facie First Amendment protected expression, and their component parts should also be protected. He asserted that the state's claimed interests (preventing crimes) do not justify such a broad infringement on First Amendment freedoms, especially when less restrictive alternatives (like direct criminal prosecution for illegal acts) are available. He rejected the notion that the Twenty-first Amendment permits otherwise unconstitutional regulation, explaining that its legislative history focuses on Commerce Clause issues related to alcohol importation, not the overriding of First Amendment rights. Furthermore, he argued that conditioning a 'privilege' (liquor license) on foregoing constitutional rights constitutes an unconstitutional condition, citing numerous precedents invalidating such practices. He also noted that the regulations discriminate based on the content of speech (sex-related), which warrants the gravest suspicion.
Analysis:
This case significantly modified the scope of First Amendment protections within the unique context of liquor-licensed establishments, establishing that the Twenty-first Amendment grants states a broader regulatory power in this area than they would typically possess. It suggests a balancing approach where the state's interest in public welfare and morals, augmented by its alcohol control authority, can outweigh First Amendment concerns when regulating commercial venues selling liquor by the drink. This decision creates a carve-out where expressions, though potentially protected in other settings, can be restricted due to their association with the sale of alcohol and the resulting social ills. Future cases might leverage this precedent to argue for increased state control over expression in other heavily regulated industries, although its primary impact remains within the specific domain of alcohol regulation due to the unique nature of the Twenty-first Amendment.
