Federal appeals panel: Georgia county can bar mixing of alcohol, nudity
By David Hudson
07.24.00
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A Georgia county ordinance prohibiting nude-dancing businesses from serving alcohol does not violate the First Amendment, a federal appeals court panel has ruled.
In 1997, Athens-Clarke County officials adopted an ordinance which provided that no adult entertainment license could be issued to any business that served alcohol.
Later that year, several nude-dancing businesses, including Wise Enterprises, Inc., sued in federal court, contending that the ordinance restricted their free-expression rights.
In 1999, a federal district court dismissed the lawsuit and found the ordinance constitutional. On appeal, the 11th U.S. Circuit Court of Appeals agreed with the lower court in Wise Enterprises, Inc. v. Unified Government of Athens-Clarke County.
The clubs argued that the ordinance was content-based and had been passed because of a distaste for nude dancing. However, the panel determined that the ordinance was content-neutral.
"The ordinance does not attempt to regulate any potential communicative elements of nude dancing, nor does it limit the number of establishments where nude dancing can occur," the panel wrote in its July 13 opinion.
The panel analyzed the constitutionality of the ordinance pursuant to the test established by the U.S. Supreme Court in its 1968 decision United States v. O'Brien. In O'Brien, the Court said that ordinances regulating both conduct and speech could be analyzed under an intermediate level of judicial scrutiny. Under the O'Brien test, a regulation is constitutional if:
The panel determined that the county ordinance satisfied all four elements of the O'Brien test.
"There is no evidence in the record that the County passed the ordinance to discourage nude dancing or to hinder the communicative aspects of such conduct," the panel wrote.
The judges determined that county officials had passed the ordinance to address the harmful, secondary effects associated with mixing alcohol and nude dancing.
The panel also relied on the U.S. Supreme Court's recent nude-dancing decision in City of Erie v. Pap's A.M. for the proposition that the county law was content-neutral and constitutional.
The panel cited Pap's for the proposition that "a regulation which furthers legitimate government interests unrelated to the message conveyed by nude dancing should be deemed content-neutral, even if the regulation has an incidental impact on protected expression."
Calls to attorneys on both sides were not returned.