Mickens v. City of Kodiak, 5628

• Decision Date: 11 February 1982
• Docket Number: No. 5628,5628
• Citation: 640 P.2d 818
• Parties: Paula MICKENS, Appellant, v. The CITY OF KODIAK, A Municipal Corporation, Appellee.
• Court: Alaska Supreme Court

Page 818

640 P.2d 818

Paula MICKENS, Appellant, v. The CITY OF KODIAK, A Municipal Corporation, Appellee.

No. 5628.

Supreme Court of Alaska.

Feb. 11, 1982.

Gerald W. Markham, Kodiak, for appellant.

Melvin M. Stephens, II, and C. Walter Ebell, Hartig, Rhodes, Norman & Mahoney, Kodiak, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

MATTHEWS, Justice.

Paula Mickens performs as a topless dancer at a bar in Kodiak, known as Tony's Place. She wears only a "T-string" during her act which covers her pubic region, but leaves her breasts and buttocks fully exposed.

On August 14, 1980, the City of Kodiak enacted Ordinance No. 588, which prohibits waiters, waitresses and entertainers in establishments serving alcohol from exposing their genitals, buttocks, and, in the case of females, their breasts. ¹ Mickens brought an action in the superior court on August 28, 1980, before the law became effective, seeking a declaratory judgment that the ordinance was facially unconstitutional and an order permanently enjoining the City from enforcing it. After hearing oral argument on the parties' cross-motions for summary judgment, the trial court entered an order granting the City's motion and dismissing the complaint.

Dancing, including nude dancing, is a constitutionally protected form of expression under the first amendment to the United States Constitution. ²

Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). See also California v. La Rue, 409 U.S. 109, 118, 93 S.Ct. 390 (397) 34 L.Ed.2d 342 (1972); Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 62, 96 S.Ct. 2440 (2447, 2448) 49 L.Ed.2d 310 (1976). Nor may an entertainment program be prohibited solely because it displays the nude human figure.

"Nudity alone" does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra (418 U.S.) at 161, 94 S.Ct. 2750 (2755) 41 L.Ed. 642; Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra (422 U.S.) at 211-12, 213, 95 S.Ct. 2268 (2273-74, 2275) 45 L.Ed.2d 125. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem Inn, Inc., supra, Southeastern Promotions, Ltd. v. Conrad, supra; California v. La Rue, supra.

Schad v. Borough of Mt. Ephraim, --- U.S. ----, ---- - ----, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671, 678-79 (1981). The free speech clause of the Alaska Constitution, Article I, Section 5, ³ was meant to be at least as protective of expression as the First Amendment to the United States Constitution. ⁴ We hold, therefore, that nude dancing is also protected under Article I, Section 5 of our state constitution.

The City contends, nevertheless, that it has the power to prohibit nude dancing in establishments where alcohol is served, relying on California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). Citing the states' broad authority to control intoxicating liquors under the Twenty-First amendment to the United States Constitution, La Rue upheld challenged regulations of the California Department of Alcoholic Beverage Control which prohibited certain sexually explicit live entertainment or films. The court held that the regulations did not on their face violate the Constitution, notwithstanding the fact that the regulations proscribed some acts which were not obscene and which were within the limits of the first amendment's protection. 409 U.S. at 115-19, 93 S.Ct. at 395-97, 34 L.Ed.2d at 350-52. The court has recently followed LaRue in New York State Liquor Authority v. Bellanca, --- U.S. ----, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981).

The Alaska constitution contains no clause similar to the twenty-first amendment which might be said to justify prohibiting otherwise protected forms of expression where liquor is sold. Our state constitution, like that of Massachusetts, "draws no distinction between free speech in a bar and free speech on a stage, and no provision of our Constitution gives a preferred position to regulation of alcoholic beverages." Commonwealth v. Sees, 374 Mass. 532, 373 N.E.2d 1151, 1155 (1978). ⁵ Because of the Twenty-First Amendment, the federal constitution does not prohibit the City from restricting, in places where liquor is sold, forms of expression which would otherwise be protected under the First Amendment; the state constitution, however, does contain such a prohibition. We therefore reject the La Rue rationale on state constitutional grounds. ⁶

The ordinance prohibits performances involving nudity before adult audiences who knowingly and willingly have come to view them. It is aimed at the content of the performances in the sense that shows containing nude scenes are forbidden, while other performances are not. See Erznoznik v. City of Jacksonville, 422 U.S. at 214-15, 95 S.Ct. at 2275-76, 45 L.Ed.2d 125, 134. Laws prohibiting free expression, based on the content of the expression, are sustainable only for the most compelling of reasons. See Erznoznik, supra, Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284, 294 (1971), Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212, 216-17 (1972); see L. Tribe, Amer.Const.Law. § 12-2, 580-84 (1978). Here, such reasons do not exist and, therefore, the ordinance must be stricken.

The City claims that the ordinance was passed in response to public testimony of citizens who were fearful of criminal activity in the vicinity of the bars offering nude dancing. The City relies on figures compiled by the Kodiak Chief of Police which allegedly show that there has been a substantial increase in the number of calls for public assistance at Tony's Place since the advent of nude entertainment. The City has not demonstrated that the increase in police calls originating at Tony's Place has been caused by anything other than an increase in the volume of business there. While this, in turn, may well be the result of nude dancing, there is no reason to suppose that other forms of entertainment, not involving nudity, would not also increase business and therefore police calls.

Discrimination on the basis of the content of protected forms of expression cannot be tolerated except where there are "clear reasons" for it. Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275-76, 45 L.Ed.2d 125, 134 (1975). ⁷ Here the City has offered no justification for distinguishing between entertainment involving nudity from other forms of entertainment as a means to prevent crowds from congregating in establishments where intoxicating liquor is sold. Without such a justification, the ordinance cannot stand.

Moreover, it is not permissible to suppress constitutionally protected forms of expression in order to curb the lawless conduct of some of those who are reacting to it, unless other law enforcement techniques which do not infringe first amendment freedoms are unavailable or likely to be ineffective. ⁸ Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); Feiner v. New York, 340 U.S. 315, 326-27, 71 S.Ct. 303, 309-10, 95 L.Ed. 295, 303 (1951) (Black, J., dissenting). The City here has attempted no showing that it is incapable of enforcing its laws relating to drunkenness and assaultive behavior. There is therefore no basis for concluding that the City's effort to achieve the object of these laws indirectly by suppressing nude dancing is constitutionally justified.

Although we have concluded that the ordinance does not pass constitutional muster for the above reasons, it is well to keep in mind what this case does not involve. It does not involve an ordinance which prohibits only obscene performances. It does not involve unwilling or captive viewers whose personal sensibilities are offended by the performances in question. And it does not involve an effort to protect children from sexually oriented displays which are not obscene by adult standards. If these factors had existed, a different and stronger case for the ordinance could be made. ⁹

REVERSED and REMANDED for entry of judgment in favor of appellant.

BURKE, Justice, concurring.

I concur.

I do, however, wish to point out what I believe to be an important difference between the ordinance in this case and the statute held enforceable in New York State Liquor Authority v. Bellanca, --- U.S. ----, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981).

The statute in Bellanca did not attempt to impose criminal penalties on those performing in violation of its terms. It was aimed solely at the licensee ¹ and could only "cause an establishment to lose its liquor license." --- U.S. at ----, 101 S.Ct. at 2600, 69 L.Ed.2d at 359. Thus, the penalty for a violation was civil in nature and directly related to the activities of the license holder.

1 Kodiak City Ordinance No. 588 provides:

WHEREAS, the City Council finds that there exists in this City an increasing trend toward nude and semi-nude acts, exhibitions and entertainment, and of undress by employees of establishments...