California v. Rue

Decision Date05 December 1972
Docket NumberNo. 71-36,71-36
Citation93 S.Ct. 390,409 U.S. 109,34 L.Ed.2d 342
PartiesCALIFORNIA et al., Appellants, v. Robert LaRUE et al
CourtU.S. Supreme Court

See 410 U.S. 948, 93 S.Ct. 1351.

Syllabus

Following hearings, the California Department of Alcoholic Beverage Control issued regulations prohibiting explicitly sexual live entertainment and films in bars and other establishments licensed to dispense liquor by the drink. A three-judge District Court held the regulations invalid under the First and Fourteenth Amendments, concluding that under standards laid down by this Court some of the prescribed entertainment could not be classified as obscene or lacking a communicative element. Held: In the context, not of censoring dramatic performances in a theater, but of licensing bars and nightclubs to sell liquor by the drink, the States have broad latitude under the Twenty-first Amendment to control the manner and circumstances under which liquor may be dispensed, and here the conclusion that sale of liquor by the drink and lewd or naked entertainment should not take place simultaneously in licensed establishments was not irrational nor was the prophylactic solution unreasonable. Pp. 114—119.

326 F.Supp. 348, reversed.

L. Stephen Porter, San Francisco, Cal., for appellants.

Harrison W. Hertzberg, Los Angeles, Cal., and Kenneth Philip Scholtz, Gardena, Cal., for appellees.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970 the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U.S.C. §§ 1331, 1343, 2201, 2202, and 42 U.S.C. § 1983. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution.1

Concerned with the progression in a few years' time from 'topless' dancers to 'bottomless' dancers and other forms of 'live entertainment' in bars and nightclubs that it licensed, the Department heard a number of witnesses on the subject at public hearings held prior to the promulgation of the rules. The majority opinion of the District Court described the testimony in these words:

'Law enforcement agencies, counsel and owners of licensed premises and investigators for the Department testified. The story that unfolded was a sordid one, primarily relating to sexual conduct between dancers and customers. . . .' 326 F.Supp. 348, 352.

References to the transcript of the hearings submitted by the Department to the District Court indicated that in licensed establishments where 'topless' and 'bottomless' dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the Department had occurred. Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.

Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises.

At the conclusion of the evidence, the Department promulgated the regulations here challenged, imposing standards as to the type of entertainment that could be presented in bars and nightclubs that it licensed. Those portions of the regulations found to be unconstitutional by the majority of the District Court prohibited the following kinds of conduct on licensed premises:

(a) The performance of acts, or simulated acts, of 'sexual intercourse, masturbation, sodomy bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law';

(b) The actual or simulated 'touching, caressing or fondling on the breast, buttocks, anus or genitals';

(c) The actual or simulated 'displaying of the public hair, anus, vulva or genitals';

(d) The permitting by a licensee of 'any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus'; and, by a companion section,

(e) The displaying of films or pictures depicting acts a live performance of which was prohibited by the regulations quoted above. Rules 143.3 and 143.4. 2

Shortly before the effective date of the Department's regulations appellees unsuccessfully sought discretionary review of them in both the State Court of Appeal and the Supreme Court of California. The Department 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.3 The District Court majority upheld the appellees' claim that the regulations in question unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments to the United States Constitution. It reasoned that the state regulations had to be justified either as a prohibition of obscenity in accordance with the Roth line of decisions in this Court (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), or else as a regulation of 'conduct' having a communicative element in it under the standards laid down by this Court in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Concluding that the regulations would bar some entertainment that could not be called obscene under the Roth line of cases, and that the governmental interest being furthered by the regulations did not meet the tests laid down in O'Brien, the court enjoined the enforcement of the regulations. 326 F.Supp. 348. We noted probable jurisdiction. 404 U.S. 999, 92 S.Ct. 559, 30 L.Ed.2d 551.

The state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink. In Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966), this Court said:

'Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that: 'The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. In Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964), the Court reaffirmed that by reason of the Twenty-first Amendment 'a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' Still earlier, the Court stated in State Board v. Young's Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 L.Ed. 38 (1936):

'A classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth.'

These decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. In Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), the fundamental notice and hearing requirement of the Due Process Clause of the Fourteenth Amendment was held applicable to Wisconsin's statute providing for the public posting of names of persons who had engaged in excessive drinking. But the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened by that enactment:

'Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.' Hostetter v. Idlewild Bon Voyage Liquor Corp., supra, at 332, 84 S.Ct., at 1298.

A common element in the regulations struck down by the District Court appears to be the Department's conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place in bars and cocktail lounges for which it has licensing responsibility. Based on the evidence from the hearings that it cited to the District Court, and mindful of the principle that in legislative rulemaking the agency may reason from the particular to the general, Assigned Car Cases, 274 U.S. 564, 583, 47...

To continue reading

Request your trial
612 cases
  • Gold Diggers, LLC v. Town of Berlin, Conn.
    • United States
    • U.S. District Court — District of Connecticut
    • January 16, 2007
    ...these ... regulations were the constitutional equivalent of a scantily clad ballet troupe in a theater." California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Certain regulation of SOBs is permitted without presenting the grave "dangers of a censorship system" confron......
  • Crownover v. Musick
    • United States
    • California Supreme Court
    • May 1, 1973
    ...83 Cal.Rptr. at p. 825, 464 P.2d at p. 489.) The recent decision of the United States Supreme Court in California v. LaRue (1972) 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, adheres to this line of precedent. LaRue passed upon a regulation which, in addition to banning live or filmed sexual......
  • People v. Glaze
    • United States
    • California Supreme Court
    • August 7, 1980
    ...(Cf. Schneider v. State (1939) 308 U.S. 147, 162, 60 S.Ct. 146, 151, 84 L.Ed. 155; California v. LaRue (1972) 409 U.S. 109, 131-133, 93 S.Ct. 390, 403-404, 34 L.Ed.2d 342 (dis. opn. of Marshall, J.).) Arguably, crime in the streets could be reduced by prohibiting all persons from going out ......
  • Gay Students Organization of University of New Hampshire v. Bonner, Nos. 74--1075
    • United States
    • U.S. Court of Appeals — First Circuit
    • December 30, 1974
    ...protected by the First Amendment. See Salem Inn, Inc. v. Frank, 501 F.2d 18, 20 (2d Cir. 1974); cf. California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).6 Since we find the First Amendment issues presented here to be dispositive, it is not necessary to consider fully ......
  • Request a trial to view additional results
6 books & journal articles
  • "THIS WEARISOME ANALYSIS": THE CLEAR AND PRESENT DANGER TEST FROM SCHENCK TO BRANDENBURG.
    • United States
    • South Dakota Law Review Vol. 66 No. 3, March 2021
    • March 22, 2021
    ...the state could not show a clear and present danger of any serious evil resulting from all-nude dancing and alcohol. California v. LaRue, 409 U.S. 109, 131 (1972) (Marshall, J., dissenting) (arguing against the majority's holding that California's denial of a liquor license to bars with all......
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Real Property Deskbook Series Volume 5: Land Use Planning (WSBA) Table of Cases
    • Invalid date
    ...20.4(2) California v. Fed. Energy Regulatory Comm'n, 495 U.S. 490, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990):8.10(1) California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972):12.6 Camfield v. United States, 167 U.S. 518, 17 S. Ct. 864, 42 L. Ed. 260 (1897):20.4(3) Carcieri v......
  • Impact Decisions of the U.s. Supreme Court: Criminal Cases 1972 Term
    • United States
    • Colorado Bar Association Colorado Lawyer No. 3-2, December 1973
    • Invalid date
    ...Was Valid: Couch v. United States, supra, I C 2 b. C. First Amendment 1. Forbidding Sexual Entertainment at Bars: California v. LaRue, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Alcohol Board regulations forbidding sexual entertainment in places licensed to sell liquor by the drink upheld as an e......
  • The First Amendment gone awry: City of Erie v. Pap's A.M., ailing analytical structures, and the supression of protected expression.
    • United States
    • University of Pennsylvania Law Review Vol. 150 No. 3, January 2002
    • January 1, 2002
    ...MICH. J.L. REFORM 255 (1987-88) (providing a history of the Supreme Court's obscenity jurisprudence and detailing its shortcomings). (44) 409 U.S. 109, 118 (45) 452 U.S. 61, 66 (1981). (46) See Barnes v. Glen Theatre, 501 U.S. 560, 565-66 (1991) (describing nude dancing as "within the outer......
  • Request a trial to view additional results
2 provisions
  • Chapter 102, HB 23
    • United States
    • Ohio Session Laws
    • January 1, 2005
    ...of Renton v. PlaytimeTheatres, Inc. (1986), 475 U.S. 41; Young v. American MiniTheatres (1976), 426 U.S. 50; California v. LaRue(1972), 409 U.S. 109; DLS, Inc. v. City of Chattanooga(6th Cir. 1997) 107 F.3d 403; East Brooks Books, Inc. v. Cityof Memphis, (6th Cir. 1995), 48 F.3d 220; Harris......
  • Chapter 227, HB 2490 – sex offenders; annual community notification (NOW: sexually oriented business; location; penalty
    • United States
    • Arizona Session Laws
    • January 1, 2006
    ...PAP's A.M. v. City of Erie, 529 U.S. 277 (2002), City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), California v. Larue, 409 U.S. 109 (1972), Gammoh City of La Habra, 395 F. 3d 1114 (9th cir. 2005), World Wide Video of Washington, Inc. v. ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT