Quetgles v. State

• Decision Date: 28 February 2003
• Citation: 884 So.2d 911
• Parties: Stephen Ray QUETGLES v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

884 So.2d 911

Stephen Ray QUETGLES v. STATE of Alabama.

CR-01-1596.

Court of Criminal Appeals of Alabama.

February 28, 2003.

Rehearing Denied April 18, 2003.

Gordon G. Armstrong III, Mobile; and Vader Al Pennington, Mobile, for appellant.

William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.

COBB, Judge.

On March 25, 2002, Stephen Ray Quetgles was convicted of two counts of violating § 13A-12-200.11, Ala.Code 1975, which prohibits displaying genitals. The trial court sentenced him to concurrent five-year sentences, but split the sentences and ordered Quetgles to serve two years, followed by formal probation for five years. This appeal followed.

The facts adduced at trial indicate that, on two separate occasions, undercover police officers paid the cover charge and gained entrance to "sex parties" in what was purported to be a tanning salon owned and operated by Quetgles and his common-law wife. During these "sex parties," which Quetgles and his common-law wife conducted on Saturday evenings, each person paid a $20 cover charge for refreshments. Guests were then allowed either to participate in the orgiastic activities or simply to watch. Law enforcement officers secretly videotaped the parties twice, each time for several hours. Quetgles and his wife were arrested shortly thereafter and charged.

Quetgles argues on appeal, as he argued at trial, that the statute under which he was convicted is unconstitutional. Specifically, he contends that the statute is overbroad and that it is a content-based restriction on his First Amendment right to free expression.¹ Section 13A-12-200.11 reads, in pertinent part, as follows:

"It shall be unlawful for any business establishment or any private club to show or allow to be shown for entertainment purposes the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. A violation of this section shall be a Class C felony."

Both of the arguments raised by Quetgles have been addressed by the federal court system. In Ranch House, Inc. v. Amerson, 22 F.Supp.2d 1296 (N.D.Ala.1998), the district court upheld the constitutionality of § 13A-12-200.11 in the face of, among other things, challenges to the breadth of the statute and to the statute's effect on citizens' First Amendment rights. On appeal, the United States Court of Appeals for the Eleventh Circuit discussed in detail the appropriate analysis to test the constitutionality of a statute that appears to proscribe speech or expression based on content:

"As we often have remarked, `[w]hether a statute is constitutional is determined in large part by the level of scrutiny applied by the courts.' [Williams v. Pryor, 229 F.3d 1331, 1334 (11th Cir.2000)]. The Supreme Court in [City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000),] recently addressed the proper framework for evaluating what level of scrutiny should be applied to statutes that restrict nude dancing. Although no opinion in that case was joined by more than four Justices, a majority of the Court basically agreed on how these kinds of statutes should be analyzed:

"`[First, a court] must decide "whether the State's regulation is related to the suppression of expression." If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" standard of [United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968),] for evaluating restrictions on symbolic speech. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O'Brien test and must be justified under a more demanding standard.'

"Pap's, 120 S.Ct. at 1391 (plurality op.) (citations omitted); see also id. at 1402 (Souter, J., concurring in part and dissenting in part) (stating agreement with the `analytical approach that the plurality employs in deciding this case'). The defining question, therefore, is whether [§ 13A-12-200.11, Ala.Code 1975,] is a content-based regulation of protected expression.

"The Supreme Court recently reiterated that the hallmark of a content-based regulation is the government's purpose to suppress the message conveyed by the speech or expression at issue. See Hill v. Colorado, 530 U.S. 703, 120 S.Ct. 2480, 2491, 147 L.Ed.2d 597 (2000) (`"The principal inquiry in determining content neutrality, in speech cases generally ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.... As we have repeatedly explained, government regulation of expressive activity is `content-neutral' if it is justified without reference to the content of regulated speech".') (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661 (1989)). Thus, if a regulation of expression may be justified without reference to the contents of the expression, the regulation is considered content-neutral. This point is critical, because the fact that a statute refers to the content of expression does not necessarily make it content-based if it was enacted for a valid purpose other than suppressing the expression due to a disagreement with the message conveyed or a concern over the message's direct effect on those who are exposed to it. Section 200.11 does distinguish among the forms of expression being proscribed — it is not all nudity, but rather only nudity for entertainment purposes, that the Alabama Legislature has sought to ban. Thus, in a narrow sense, § 200.11 is not `neutral' as to content because it explicitly permits certain types of nude expression while restricting other types of nude expression based entirely on whether the expression is for entertainment purposes. Ranch House emphasizes this fact heavily. As noted above, however, both the Supreme Court and this Court have framed the inquiry more broadly, by focusing on the purpose of the legislature in enacting the challenged law.

"The most relevant line of cases illustrating this point — and the line of cases relied upon by Defendants here — involves the so-called secondary effects doctrine, as first set forth by the Supreme Court in City of Renton v. Playtime Theatres [, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)]. The ordinance at issue in Renton prohibited any `adult motion picture theater' from locating `within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school.' The term `adult motion picture theater' was defined as `[a]n enclosed building used for presenting motion picture films ... or any other such visual media, distinguished or characteri[zed] by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" ... for observation by patrons therein.' The plaintiff argued that the ordinance was a content-based regulation of speech that should be given strict scrutiny rather than analyzed under the less exacting intermediate scrutiny applied to content-neutral `time, place, and manner' laws. The Court disagreed, and in the process illustrated that a statute is not necessarily content-based simply because on its face it distinguishes among types of speech based on their contents:

"`This Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. On the other hand, so-called "content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.

"`At first glance, the Renton ordinance ... does not appear to fit neatly into either the "content-based" or the "content-neutral" category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at "adult motion picture theatres," but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council's "predominate concerns" were with the secondary effects of adult theaters, and not with the content of adult films themselves.... The ordinance by its terms is designed to prevent crime, protect the city's retail trade, maintain property values, and generally "protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life," not to suppress the expression of unpopular views.... In short, the Renton ordinance is completely consistent with our definition of "content-neutral" speech regulations as those that "are justified without reference to the content of the regulated speech." The ordinance does not contravene the fundamental principle that underlies our concern about "content-based" speech regulations: that "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." ...'

"475 U.S. at 46-48, 106 S.Ct. at 928-29 (citations omitted [in Amerson]).

"In Renton, the Court recognized that a statute which on its face distinguishes based on content is not necessarily content-based for purposes of First Amendment analysis. The ultimate question is whether the legislature's purpose is to suppress the content of the proscribed message because of a disagreement with that message or concern over the direct effect of that message on its observers. The secondary effects doctrine conceived by

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