452 U.S. 714 (1981), 80-813, New York State Liquor Authority v. Bellanca

Docket Nº:No. 80-813
Citation:452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357
Party Name:New York State Liquor Authority v. Bellanca
Case Date:June 22, 1981
Court:United States Supreme Court
 
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Page 714

452 U.S. 714 (1981)

101 S.Ct. 2599, 69 L.Ed.2d 357

New York State Liquor Authority

v.

Bellanca

No. 80-813

United States Supreme Court

June 22, 1981

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF NEW YORK

Syllabus

Held. A provision of New York's Alcoholic Beverage Control Law prohibiting nude dancing in establishments licensed by the State to sell liquor for on-premises consumption is not unconstitutional as violating the First Amendment on the alleged ground that it prohibits nonobscene topless dancing, but instead is valid as being within the State's broad power under the Twenty-first Amendment to regulate the sale of liquor within its boundaries. Cf. California v. LaRue, 409 U.S. 109. The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs. Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad power under the Twenty-first Amendment.

Certiorari granted; 50 N.Y.2d 524, 407 N.E.2d 460, reversed and remanded.

Per curiam opinion.

PER CURIAM.

The question presented in this case is the power of a State to prohibit topless dancing in an establishment licensed by the State to serve liquor. In 1977, the State of New York amended its Alcoholic Beverage Control Law to prohibit nude dancing in establishments licensed by the State to sell liquor for on-premises consumption. N.Y.Alco.Bev.Cont.Law, § 106, subd. 6-a (McKinney Supp.1980-1981).1 The statute

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does not provide for criminal penalties, but its violation may cause an establishment to lose its liquor license.

Respondents, owners of nightclubs, bars, and restaurants which had for a number of years offered topless dancing, brought a declaratory judgment action in state court, alleging that the statute violates the First Amendment of the United States Constitution insofar as it prohibits all topless dancing in all licensed premises. The New York Supreme Court declared the statute unconstitutional, and the New York Court of Appeals affirmed by a divided vote. 50 N.Y.2d 524, 407 N.E.2d 460. It reasoned that topless dancing was a form of protected expression under the First Amendment, and that the State had not demonstrated a need for prohibiting "licensees from presenting nonobscene topless dancing performances to willing customers. . . ." Id. at 529, 407 N.E.2d at 463. The dissent contended that the statute was well within the State's power, conferred by the Twenty-first Amendment, to regulate the sale of liquor within its boundaries.2 We agree with the reasoning of the dissent, and now reverse the decision of the New York Court of Appeals.

This Court has long recognized that a State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939). It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places, and circumstances under which liquor may be sold. In California v. LaRue, 409 U.S. 109 (1972), we upheld the facial constitutionality of a statute prohibiting acts of "gross sexuality," including the display of the genitals and live or filmed performances of sexual acts, in establishments licensed by the State to serve

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liquor. Although we recognized that not all of the prohibited acts would be found obscene and were therefore entitled to some measure of First Amendment protection, we reasoned that the statute was within the State's broad power under the Twenty-first Amendment to regulate the sale of liquor.

[101 S.Ct. 2601] In Doran v. Salem Inn Inc., 422 U.S. 922 (1975), we considered a First Amendment challenge to a local ordinance which prohibited females from appearing topless not just in bars, but "any public place." Though we concluded that the District Court had not abused its discretion in granting a preliminary injunction against enforcement of the ordinance, that decision does not limit our holding in LaRue. First, because Doran arose in the context of a preliminary injunction, we limited our standard of review to whether the District Court abused its discretion in concluding that plaintiffs were likely to prevail on the merits of their claim, not whether the ordinance actually violated the First Amendment. Thus, the decision may not be considered a "final judicial decision based on the actual merits of the controversy." University of Texas v. Camenisch, 451 U.S. 390, 396 (1981). Second, the ordinance was far broader than the ordinance involved either in LaRue or here, since it proscribed conduct at "any public place," a term that "`could include the theater, town hall, opera place, as well as a public market place, street or any place of assembly, indoors or outdoors.'" 422 U.S. at 933 (quoting Salem. Inn, Inc. v. Frank, 364 F.Supp. 478, 483 (EDNY 1973)). Here, in contrast, the State has not attempted to ban topless dancing in "any public place": as in LaRue, the statute's prohibition applies only to establishments which are licensed by the State to serve liquor. Indeed, we explicitly recognized in Doran that a more narrowly drawn statute would survive judicial scrutiny:

Although the customary "barroom" type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409

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U.S. 109, 118 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing, and that a State could therefore ban such dancing as part of its liquor license control program.

422 U.S. at 932-933.

Judged by the standards announced in LaRue and Doran, the statute at issue here is not unconstitutional. What the New York Legislature has done in this case is precisely what this Court in Doran has said a State may do. Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs.

Respondents nonetheless insist that LaRue is distinguishable from this case, since the statute there prohibited acts of "gross sexuality" and was well supported by legislative findings demonstrating a need for the rule. They argue that the statute here is unconstitutional as applied to topless dancing because there is no legislative finding that topless dancing poses anywhere near the problem posed by acts of "gross sexuality." But even if explicit legislative findings were required to uphold the constitutionality of this statute as applied to topless dancing, those findings exist in this case. The purposes of the statute have been set forth in an accompanying legislative memorandum, New York State Legislative Annual 150 (1977).

Nudity is the kind of conduct that is a proper subject for legislative action, as well as regulation by the State Liquor Authority as a phase of liquor licensing. It has long been held that sexual acts and performances

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may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law. . . .

Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will, once and for all, outlaw conduct which is now quite out of hand.

In short, the elected representatives of the State of New York have chosen to avoid [101 S.Ct. 2602] the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Given the "added presumption in favor of the validity of the state regulation" conferred by the Twenty-first Amendment, California v. LaRue, 409 U.S. at 118, we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation, and may consider topless dancing a harmless diversion, the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts.

Accordingly the petition for certiorari is granted, the judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE MARSHALL concurs in the judgment.

JUSTICE BRENNAN dissents from the summary disposition and would set the case for oral argument.

STEVENS, J., dissenting

JUSTICE STEVENS, dissenting.

Although the Court has written several opinions implying that nude or partially nude dancing is a form of expressive

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activity protected by the First Amendment, the Court has never directly confronted the question.1 Today the Court construes the Twenty-first Amendment as a source of power permitting the State to prohibit such presumably protected activities in establishments which serve liquor. The Court relies on California v. LaRue, 409 U.S. 109, for that construction of the Twenty-first Amendment. The rationale of today's decision however, is not the same as the explanation the Court gave for its holding in that case. The syllogism supporting today's conclusion includes the premise that the State's Twenty-first Amendment power to ban the sale of alcoholic beverages entirely includes the lesser power...

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