Schultz v. City of Cumberland

• Decision Date: 09 May 1995
• Docket Number: No. 94-3106,94-3106
• Citation: 195 Wis.2d 554,536 N.W.2d 192
• Parties: Joseph SCHULTZ, d/b/a The Island Bar, Plaintiff-Appellant, d v. CITY OF CUMBERLAND, Defendant-Respondent. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 192

536 N.W.2d 192

195 Wis.2d 554

Joseph SCHULTZ, d/b/a The Island Bar, Plaintiff-Appellant,^d v. CITY OF CUMBERLAND, Defendant-Respondent.

No. 94-3106.

Court of Appeals of Wisconsin.

Oral Argument May 9, 1995.

Opinion Released June 27, 1995.

Opinion Filed June 27, 1995.

On behalf of plaintiff-appellant, the cause was submitted on the brief of Thomas D. Bell and Matthew A. Biegert of Doar, Drill & Skow, S.C. of New Richmond and orally argued by Matthew A. Biegert.

On behalf of defendant-respondent, the cause was submitted on the brief of and orally argued by Peter E. Van Sickle of Cumberland.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Joseph Schultz operates the Island Bar in the City of Cumberland under a municipal liquor license, and he challenges a city ordinance that bans nude, semi-nude and other sexually explicit performances on the premises by subjecting the violator to a license revocation. ¹ Schultz contends the ordinance is an unreasonable interference with his constitutional rights to First Amendment free expression and Fourteenth Amendment equal protection of the law. We reject his contentions and affirm the circuit court's declaratory judgment.

This court's review of the circuit court's determination of the constitutionality of the ordinance is de novo. See, e.g., Consolidated Freightways Corp. v. DOR, 164 Wis.2d 764, 771, 477 N.W.2d 44, 47 (1991). The general presumption of constitutionality accorded legislation is inapplicable where the law infringes on the exercise of First Amendment rights, and the burden of establishing the law's constitutionality is upon the government. Madison v. Baumann, 162 Wis.2d 660, 669, 470 N.W.2d 296, 298 (1991). ²

Because Schultz's challenge to the Cumberland ordinance seeks to protect the element of free expression present in "nonspeech" activities (nude or simulated nude performances), we start with the well-established test by which symbolic speech cases are adjudged. ³ United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), upheld a conviction of a draft card burner who asserted that his act was symbolic speech protesting America's involvement in the VietNam war. The Supreme Court rejected O'Brien's contention that he was entitled to full First Amendment protection:

This Court has held that 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. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id. at 376-77, 88 S.Ct. at 1678-79 (footnotes omitted).

The O'Brien analysis was then applied in California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). La Rue upheld the facial validity of a state law that prohibited acts of "gross sexuality," including the display of the genitals and live or filmed performances of sexual acts in bars licensed to dispense liquor, even though not all of the prohibited acts would be found obscene. The Court noted at the outset:

"Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment...."

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.

Id. at 114, 93 S.Ct. at 395 (quoting Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966)).

In response to the First Amendment challenge, the Court observed:

In O'Brien ... the Court suggested that the extent to which "conduct" was protected by the First Amendment depended on the presence of a "communicative element," and stated:

"We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."

Id. at 117-18, 93 S.Ct. at 396-97 (quoting O'Brien, 391 U.S. at 376, 88 S.Ct. at 1678).

The Court concluded:

This is not to say that all such conduct and performance are without the protection.... But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theatre.

Id. at 118, 93 S.Ct. at 397.

Several later decisions dealt directly with the issue of Twenty-first Amendment enactments restricting nude dancing in barrooms and the interplay of the First Amendment. New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), upheld the power of a state to prohibit topless dancing in a licensed liquor establishment. The Court ruled that "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." Id. at 718, 101 S.Ct. at 2602. ⁴

Newport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986), upheld a city ordinance prohibiting nude or nearly nude dancing in local establishments licensed to sell liquor. The Court recognized the state's power to delegate to a municipality the broad power to regulate under the Twenty-first Amendment. Id. at 96, 107 S.Ct. at 385. ⁵

Schultz relies upon the First Amendment discussion found in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), to support his contention that the Cumberland ordinance is invalid because it is aimed at conduct and not nudity.

Barnes, which upheld the anti-nudity law in question, was not a Twenty-first Amendment decision. Barnes upheld an Indiana statute applicable to any public place; it penalized any "person who knowingly or intentionally, in a public place ... appears in a state of nudity...." Id. at 569, 111 S.Ct. at 2462. The law's challengers were two establishments, a lounge presenting "go-go dancing," and an adult "bookstore" whose customers watched live nude and semi-nude dancers while sitting in a booth. They objected to the requirement of the law requiring the dancers to wear "pasties" and "G-strings" when they danced. Id. at 563, 111 S.Ct. at 2458-59. ⁶

The three-member plurality opinion by Chief Justice Rehnquist and the concurrences of two other justices decided that the law did not violate the First Amendment guarantee of freedom of expression even though it banned nude dancing. Id. It acknowledged that nude dancing of the kind sought to be performed was expressive conduct within the outer parameters of the First Amendment, although only marginally so. Id. at 566, 111 S.Ct. at 2460. It applied the four-part test of O'Brien, 391 U.S. at 376-77, 88 S.Ct. at 1678-79, and decided that the statute was justified despite its incidental limitations on some expressive activity.

Using the O'Brien analysis, five justices reasoned that the law was clearly within the state's constitutional power; that it furthered a substantial government interest; that the governmental interest in enacting the law banning public nudity was unrelated to the suppression of free expression, whether or not it was combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers convey an erotic message; to the contrary, an erotic performance may be presented without any state interference as long as the performers wear a scant amount of clothing. Barnes, 501 U.S. at 566-72, 111 S.Ct. at 2460-64. Finally, the incidental restriction on First Amendment freedom was no greater than essential to the furtherance of the governmental interest--the statutory prohibition was not a means to some greater end. Id. at 572, 111 S.Ct. at 2463.

Justice Scalia's concurrence suggested that this law was not subject to normal First Amendment scrutiny because it is not specifically directed at expression either in practice or on its face. Id. at 572-81, 111 S.Ct. at 2463-68 (Scalia, J., concurring). Justice Souter's concurrence suggested that the state's interest in preventing the secondary effects of adult entertainment establishments--prostitution, sexual assaults, and other criminal activity--was sufficient to justify the law's enforcement against nude dancing; that the asserted interest was plainly substantial, and that the state could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. Moreover, he wrote, the state's interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments, and are not the result of the expression inherent in nude dancing. Finally, he decided, the restriction was no greater than was essential to further the governmental interest. Id. at 581-87, 111 S.Ct. at 2468-71 (Souter, J., concurring).

The four-member dissenting opinion, authored by Justice White, disagreed with the conclusion that...