Major Liquors, Inc. v. City of Omaha

• Decision Date: 16 June 1972
• Docket Number: No. 38330,38330
• Citation: 188 Neb. 628,198 N.W.2d 483
• Parties: MAJOR LIQUORS, INC., d/b/a Silver Tap, Appellee, Impleaded with Caesar's Palace, Inc., Appellant, N L J G, Inc., d/b/a Mickey's et al., Appellees, v. CITY OF OMAHA, Nebraska, a Municipal Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 483

198 N.W.2d 483

188 Neb. 628

MAJOR LIQUORS, INC., d/b/a Silver Tap, Appellee, Impleaded with Caesar's Palace, Inc., Appellant, N L J G, Inc., d/b/a Mickey's et al., Appellees, v. CITY OF OMAHA, Nebraska, a Municipal Corporation, et al., Appellees.

No. 38330.

Supreme Court of Nebraska.

June 16, 1972.

Syllabus by the Court

1. Freedom of speech as guaranteed by the First Amendment may include the right to express thoughts and ideas by means other than speech.

2. The power of a state to absolutely prohibit the sale of intoxicating liquors includes the power to prescribe conditions under which it may be sold.

3. A state may protect its people against the evils incident to the use of intoxicants, and may exercise a large discretion as to the means employed.

4. The use of the police power is ordinarily a matter of public policy and of legislative judgment with which the courts will not interfere unless it exceeds constitutional bounds.

5. A police regulation is not necessarily invalid because it incidentally affects a constitutional right.

6. An ordinance prohibiting topless female dancing in places licensed for the sale of intoxicating liquors is a valid exercise of the police power.

7. Although 'conduct' may entail some elements of expression or speech, when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

8. When nudity is employed as a sales promotion in establishments purveying intoxicating liquors, it is essentially 'conduct' and subject to regulation or prohibition.

9. When speech elements are only incidental to a course of conduct or activity, such activity in its entirety is not entitled to the protection of the First Amendment.

Stern, Harris, Feldman, Becker & Thompson, Omaha, for appellant.

Walter J. Matejka, Omaha, for Major Liquors, Inc.

Herbert M. Fitle, City Atty., Frederick A. Brown, Edward M. Stein, Gary P. Bucchino, Roger G. Stanway, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

NEWTON, Justice.

In this action the sole plaintiff to appeal challenges the constitutionality of an ordinance of the city of Omaha which provides for the revocation of a liquor license if topless dancing by a female is permitted on the licensed premises. It is asserted that the ordinance conflicts with the First Amendment to the Constitution of the United States which guarantees freedom of speech and with the provisions of the Fourteenth Amendment for equal protection of the laws. We affirm the judgment of the district court holding the ordinance is valid.

Plaintiff contends that 'freedom of speech' as guaranteed by the First Amendment includes the right to express thoughts and ideas by means other than speech. Cited in support of this view is Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, holding that motion pictures are protected as they are a significant medium for the expression of ideas: In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, cert. den., 395 U.S. 910, 89 S.Ct. 1743, 23 L.Ed.2d 223, which held that topless dancing could not be banned under an ordinance prohibiting 'lewd or dissolute conduct;' Glancy v. County of Sacramento, 17 Cal.App.3d 504, 94 Cal.Rptr. 864, holding an ordinance banning topless dancing without reference to obscenity was overbroad and unconstitutional; and Hudson v. United States (D.C.App.), 234 A.2d 903, sanctioning a burlesque dance in the absence of proof of obscenity. The Giannini and Hudson decisions are based upon the premise that obscenity was not present or satisfactorily proved.

In support of the 'equal protection' argument under the Fourteenth Amendment, plaintiff asserts, in substance, that persons engaged in an industry handling intoxicating liquors cannot be classified and dealt with differently from people engaged in other callings. The only case cited which is directly in point, in that it deals with the liquor industry, is La Rue v. State of California, 326 F.Supp. 348. This case held that an ordinance prohibiting live entertainers from engaging in certain 'sexual conduct' without regard to the question of obscenity was unconstitutional. Portions of the ordinance prohibiting nude or seminude entertainers were voided.

Defendants rely upon three theories to sustain the ordinance. First, that the liquor industry is subject to strict regulation under constitutionally delegated police powers; second, that public dancing by topless female entertainers is 'conduct' not speech or expression; and third, that 'speech' elements involved are merely incidental to conduct or activity.

In earlier years saloons, barrooms, and taverns dispensing alcoholic liquors were largely unregulated. This gave rise to numerous abuses. Public disgust and denunciation gradually brought about a steady growth of restrictive controls and culminated in a constitutional amendment imposing absolute prohibition. With the repeal of the national prohibition act, the question of 'wet or dry' was again left up to the individual states. One by one the states have again authorized the manufacture, distribution, and sale of alcoholic liquors but in so doing have, without exception, made use of the police powers to impose strict controls on the industry.

The following excerpts from 45 Am.Jur.2d, Intoxicating Liquors, s. 23, p. 502, and s. 24, p. 503, are indicative of the general police power: 'The power of a state to absolutely prohibit the sale of intoxicating liquor includes the power to permit the sale thereof under definitely prescribed conditions, and such business or traffic may be permitted only under such conditions as will limit to the utmost its evils. * * *

'A state, in the exercise of its undoubted power to protect its people against the evils incident to traffic in and the use of intoxicants, may exercise large discretion as to the means employed. The form or method of regulation and control is one of public policy for the decision of each state, and frequently the prevailing view is reflected by appropriate legislative enactments. * * *

'The state has far broader power and greater latitude to regulate and restrict the use, distribution, or consumption of liquor than to regulate or restrict ordinary business, because of the effect of the former on the health and welfare of the public. The scope and extent of such regulations depend solely upon the judgment of the lawmakers, with the wisdom of which the judiciary has no concern, provided, always, that they do not transcend the limits of state authority by invading rights which are secured by the Constitution of the United States, and provided further that the regulations adopted do not operate a discrimination against the rights of residents or citizens of other states.' See, also, s. 285, p. 682, wherein it is stated: 'Regulations, both municipal and statutory, may properly prohibit the use of attractions or other amusements which may make places where intoxicating liquors are sold attractive to the loiterer. It is not a question, under such regulations, of whether the amusements are of such character as to annoy or disturb persons living nearby or doing business in the vicinity, but whether the prohibited acts will tend to attract or entice people into the place where the liquors are sold.'

These general propositions are recognized in federal as well as state law. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128, recognizes the right of a state to absolutely prohibit the manufacture transportation, sale, or possession of intoxicating liquors and holds: A state's power absolutely to prohibit the manufacture, sale, transportation or possession of intoxicants includes the lesser power to permit these things only under definitely prescribed conditions.

A state may protect its people against evil incident to intoxicants; and may exercise large discretion as to means employed. See, also, in re Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112.

In Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336, in approving, as within the police power, certain state price regulations, the court held: It is not the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process.

Under the system of government created by the Federal Constitution it is up to legislatures, not courts, to decide on the wisdom and utility of legislation.

Due process does not authorize courts to hold laws unconstitutional when they believe the legislature has acted unwisely.

Courts do not substitute their social and economic beliefs for the judgment of legislative bodies.

Were constitutionally proscribed acts interfering with personal privileges and liberties literally interpreted, in regard to many subjects, we could have no laws whatsoever. Every law affects and restricts individual rights in some manner and to a greater or lesser degree. They all regulate human conduct and interests in one form or another. For this reason rules of necessity and reasonableness are used in determining the validity of many acts legislatively prescribed. 'A police regulation, obviously intended as such, and not operating unreasonably beyond the occasions of its enactment, is not invalid because it may affect incidentally the exercise of some right guaranteed by the Constitution.' In re Anderson, 69 Neb. 686, 96 N.W. 149.

'Persons, and their rights of liberty and property, are subject to the restricts and burdens which the legislature imposes upon them for the common good, and, although the exercise of a police power may inconvenience an individual or group and may curtail the use, or...