COMMONWEALTH vs. E. GREGORY SEES
Supreme Judicial Court of Massachusetts
March 3, 1978
374 Mass. 532
Suffolk. December 6, 1977.
Summary judgment reversed.
COMMONWEALTH vs. E. GREGORY SEES.
Suffolk. December 6, 1977. - March 3, 1978.
Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.
Constitutional Law, Freedom of speech, Alcoholic liquors, Public entertainment. Alcoholic Liquors. Public Entertainment.
A city ordinance prohibiting nude dancing on premises licensed to sell alcoholic beverages under
Nude dancing by a female dancer for the entertainment of patrons on premises licensed to sell alcoholic beverages was protected expression under
COMPLAINT received and sworn to in the District Court of Chelsea on July 3, 1974.
On appeal to the Superior Court, the case was heard by Tuttle, J., a District Court judge sitting under statutory authority.
The Supreme Judicial Court granted a request for direct appellate review.
Kenneth H. Tatarian (Morris M. Goldings with him) for the defendant
Robert A. Long, Jr., Assistant District Attorney, for the Commonwealth.
BRAUCHER, J. The defendant was the manager of premises in Revere for a corporation which held an entertainment
A complaint for “Violation City Ordinance Section 13-26,” filed in the District Court of Chelsea on July 3, 1974, charged that on July 2 the defendant “did employ or permit any person to wit: Cindy Martini in or on the premises licensed under Ch 140 Sec 181 or 183A and or Ch 138 of the General Laws, while such person is unclothed or in such attire as to expose to view any portion of the areola of the female breast or any portion of the public [sic] hair, cleft of the buttocks or genitals.” On conviction on July 11, the defendant appealed, and the case was tried de novo in the Superior Court without a jury on a statement of agreed facts, the defendant‘s motion to dismiss the complaint, and an evidentiary hearing on that motion. The judge issued his findings and order on December 6, 1976, denying the motion, finding the defendant guilty, and imposing a fine of $50. The defendant‘s bill of exceptions was assented to and allowed, and we allowed the defendant‘s application for direct appellate review.
The following facts appear in the bill of exceptions. Charger Investments, Inc. (Charger), held an entertainment license under
The complaint in the present case rests on § 13-26 (a)1 of the same ordinance we considered in Revere v. Aucella, 369 Mass. 138 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U. S. 877 (1976). We there read that section as applying only to “licensed premises” subject both to a license for the sale of alcoholic beverages to be served and drunk on the licensed premises and to an entertainment license. “So read,” we said, “the ordinance is not unconstitutional on its face.” But, we thought, “we should not anticipate constitutional and other questions which may arise from particular applications of the ordinance.” Id. at 146. We also held that the ordinance could not be enforced by injunction, vacated a judgment enjoining its enforcement, and ordered a new judgment declaring that the ordinance “is not invalid on its face, without prejudice to any question
The present defendant, who was not a party to the Aucella case, asks us to reconsider our holdings in that case, citing the dissenting opinion of two Justices. We decline the invitation. But we do consider the constitutional and other questions which arise from the particular application of the provisions of the ordinance to the defendant. We do not pass on “such questions as whether their possible application in one hypothetical case would render them overbroad and hence invalid in another hypothetical case, how far they are severable, or whether they are underinclusive so as to discriminate unfairly.” Boston Licensing Bd. v. Alcoholic Beverages Control Comm‘n, 367 Mass. 788, 794 (1975). Cf. California v. LaRue, 409 U.S. 109, 119 n.5. (1972).
We reject the defendant‘s argument that § 13-26 (a) is a mere declaration of policy rather than a prohibition of conduct. The defendant was the manager of “licensed premises“; there was evidence that he did “employ or permit” a person on those premises in such attire as to expose to view parts of her body mentioned in the ordinance. Thus he could be found to have done what was “forbidden.” The ordinance does not require that the defendant himself be a licensee.
More serious is the claim that dance, though not literally “speech,” is conduct designed to express ideas, that the governmental interest in its regulation is related to the suppression of free expression, and that the incidental restriction of First Amendment freedoms involved in this case is greater than is essential to the furtherance of that governmental interest. See United States v. O‘Brien, 391 U.S. 367, 376-377 (1968). Before 1975 prohibition of topless or bottomless dancing in designated establishments was widely upheld as directed against conduct rather than speech. Jones v. Birmingham, 45 Ala. App. 86 (1969), cert. denied, 396 U.S. 1011 (1970). Yauch v. State, 109 Ariz. 576 (1973). Robinson v. State, 253 Ark. 882 (1973). Crownover v. Musick, 9 Cal. 3d 405 (1973), cert. denied sub nom. Rey-nolds v. Sacramento, 415 U.S. 913 (1974), and sub nom. Owen v. Musick, 415 U.S. 931 (1974). Hoffman v. Carson, 250 So. 2d 891 (Fla.), appeal dismissed, 404 U.S. 981 (1971). People v. Moreira, 70 Misc. 2d 68 (N.Y. Dist. Ct. 1972). Portland v. Derrington, 253 Or. 289, cert. denied, 396 U.S. 901 (1969). Wayside Restaurant, Inc. v. Virginia Beach, 215 Va. 231 (1974). Seattle v. Marshall, 83 Wash. 2d 665, cert. denied, 419 U.S. 1023 (1974). State v. Maker, 48 Wis. 2d 612 (1970), cert. denied, 401 U.S. 1013 (1971). See Annot., 49 A.L.R.3d 1084, 1094 (1973). But it now seems clear that such ordinances violate the First Amendment if not limited to places dispensing alcoholic beverages. Doran v. Salem Inn, Inc., 422 U.S. 922, 932-934 (1975). Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1048-1050 (2d Cir. 1975). Starshock, Inc. v. Shusted, 493 F.2d 1401 (3d Cir.), rev‘g 370 F. Supp. 506 (D.N.J. 1974). Saxe v. Brennan, 416 F. Supp. 892, 894-895 (E.D. Wis.), aff‘d, 544 F.2d 521 (7th Cir. 1976). Attwood v. Purcell, 402 F. Supp. 231, 236 (D. Ariz. 1975). Koppinger v. Fairmont, 311 Minn. 186, 199 (1976). People v. Nixon, 88 Misc. 2d 913 (N.Y. App. Term 1976).
The present ordinance, however, is so limited. As matter of Federal law “the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment,” outweigh “any First Amendment interest in nude dancing” and a State can therefore “ban such dancing as a part of its liquor license program.” Doran v. Salem Inn, Inc., supra at 932-933. See Scott v. Department of Alcoholic Beverage Control, 434 U.S. 1003 (1978). As we held in the Aucella case, the power of the State may be exercised by the city through an ordinance unless inconsistent with the Constitution or laws enacted by the General Court, and the present ordinance is not inconsistent with laws enacted by the General Court. 369 Mass. at 143-146.
There remains for consideration the free speech provision of
The activity here in question was protected expression under
We are somewhat troubled by the thought that some such performances may be demeaning to the employees who perform and to others like them. But no argument on these lines seems to have entered into the process of enactment of the ordinance, and no such argument is presented to us. We leave the point to another day.
As applied to the defendant, the ordinance violates
Exceptions sustained.
KAPLAN and LIACOS, JJ., adhere to the views previously expressed in the dissent of Kaplan, J. (with Chief Justice Tauro agreeing), in Revere v. Aucella, 369 Mass. 138, 148 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976): (1) the ordinance is beyond the authority of the city council because it intrudes on the jurisdiction vested by the Legislature in the administrators of the alcoholic beverages control law (
ABRAMS, J., agrees with the first basis of the Aucella dissent, reserves opinion on the second, and concurs in the judgment on the ground that the ordinance is unconstitutional in its application.
HENNESSEY, C.J. I dissent. If the ordinance at issue here applied to other than drinking establishments, it would clearly be unconstitutional on its face as an impermissible restriction on expression in the performing arts. However,
Drinking establishments, and the areas where they are permitted, may present special and serious problems to the community. Local and State regulation, provided it is not irrational or invidiously discriminatory, should be permitted to meet those special problems. The implications of the majority‘s position in this case are disturbing. Dancing is presently prohibited altogether as a condition of licenses in some instances. Some licensed drinking establishments are now denied entertainment licenses. How does the reasoning of the majority opinion affect these local options? When we prohibit all entertainment, we are suppressing expression, including the spoken word. Clearly, the community can deny or limit entertainment privileges on reasons based on consideration of time, place, and circumstances. However, the licensed drinking establishment which demands entertainment privileges may well have met all reasonable conditions as to safety, health, traffic, and the like.
The point is that, by the majority holding here, we are limiting the options for reasonable regulation. The community may rationally conclude that nude dancing in drinking places encourages other conduct of a criminal nature. The records in recent appealed cases can be said to lend support to that reasoning. Yet I think the logic of the majority position here leads to the contention that regulation must be limited to a denial of all entertainment privileges, or even leads to the proposition I have suggested above, that regula-
I have stated in the past that it is constitutionally required that the State must tolerate even “[v]ulgar, profane, offensive” speech. Commonwealth v. A Juvenile, 368 Mass. 580, 589-590 (1975). This tolerance requires protection against the barest possibilities of suppression arising from vagueness or overbreadth in regulations. But since the ordinance at issue here applies only to nude dancing and only in drinking establishments, I see in it no threat to freedom of expression. Neither the “Ballet Africains” nor presentations of lesser artistic distinction are truly threatened. The majority opinion strikes down a reasonable regulation of drinking establishments because of a threat to free expression which is theoretical rather than actual. Since the threat to free expression is nonexistent, there is a touch of intellectual masochism in denying to the community this moderate exercise of its judgment in the control of its “adult entertainment” areas.
QUIRICO, J. (dissenting). In Revere v. Aucella, 369 Mass. 138 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976), we had before us the question of the validity of an ordinance of the city of Revere regulating the types of entertainment permitted at places licensed for the sale of alcoholic beverages to be consumed on the premises. The ordinance prohibited nude dancing of the type involved in this case. We concluded that “[t]he ordinance ... is within the powers granted to the city ... and is not on its face inconsistent with our Constitution or laws.” Id. at 139-140. The defendant in the case now before us has been found guilty of violating this same ordinance by employing or permitting a nearly nude entertainer to dance on premises licensed both as a common victualler and for the sale of alcoholic beverages to be consumed thereon. This court is now reversing that conviction on the ground that the “activity here in question was protected expression under art. 16 [of the Declaration of Rights] and the ordinance is therefore invalid as applied.”1
It appears that in some circumstances a performance by a nude dancer is protected by
In my opinion, the application to the present case of the four part test prescribed by the O‘Brien decision requires the conclusion that the Revere ordinance, as applied and enforced here, does not unconstitutionally interfere with or otherwise violate either the defendant‘s or the performer‘s
(a) There can certainly be no question at this late date that the regulation of the alcoholic beverage industry is within the constitutional power of the Commonwealth. “The liquor traffic has long been recognized as a source of danger to the public welfare, health and safety, and regulations governing the conduct of the business and frequently going to the extent of prohibiting it altogether have been sustained. ... [Citations omitted.] The power of the State to protect itself by an exercise of the police power is commensurate with the nature of the evil which it seeks to eliminate.” Supreme Malt Prods. Co. v. Alcoholic Beverages Control Comm‘n, 334 Mass. 59, 61-62 (1956). “The powers of the States in dealing with the regulation of the sale of intoxicating liquors are very broad. What they may wholly prohibit, they may permit only on terms and conditions prescribed by the Legislature. ... [Citations omitted.] In dealing with a trade, which, because of its great potential evils, can be wholly prohibited, a wide power is given to the Legislature with respect to the delegation of discretionary powers.” Connolly v. Alcoholic Beverages Control Comm‘n, 334 Mass. 613, 619 (1956). Indeed, as noted at the beginning of this dissenting opinion, this court held in Revere v. Aucella, supra at 143-146, that powers delegated by the Commonwealth to the city of Revere included the power to enact the very same ordinance involved here.
(b) The next consideration is whether the ordinance, limited for the purposes of this case to the prohibition of nude dancing at establishments licensed for the sale of alcoholic beverages to be consumed on the premises, “furthers an important or substantial governmental interest.” United States v. O‘Brien, supra at 377. The government has an important and substantial interest in preserving the public safety and preventing the commission of criminal acts, and it is unquestioned that the regulation of the sale of intoxicating liquors is a proper means for accomplishing this purpose. See Aristocratic Restaurant of Mass., Inc. v. Alcoholic Bever-
The Chief Justice has noted in his dissenting opinion that “[t]he community may rationally conclude that nude dancing in drinking places encourages other conduct of a criminal nature. The records in recent appealed cases can be said to lend support to that reasoning.” In California v. LaRue, 409 U.S. 109, 111 (1972), the United States Supreme Court noted that “in licensed establishments where ‘topless’ and ‘bottomless’ dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the ... [State] had occurred.” The Court went on to list a number of criminal activities that took place on or around these premises. Id. It is my opinion that the municipal authorities, in exercising their legislative or administrative power to regulate the liquor business, may rely on their common knowledge of these conditions which probably, and perhaps inevitably, follow in the wake of the concurrence of the service of alcoholic beverages and entertainment of the kind prohibited by the Revere ordinance. There is a sufficient history of the cause and effect in such circumstances to provide a rational basis for the exercise of the legislative power to protect against the consequences.
(c) I further conclude that the governmental interest in this case is not related to the suppression of free expression. Nude dancing in licensed establishments is not prohibited “because the communication allegedly integral to the conduct is itself thought to be harmful,” O‘Brien, supra at 382, but rather to prevent the evils that result from the presentation of this type of entertainment in establishments serving liquor. The message communicated by the dancers is not relevant; indeed, if activity that was unrelated to sex resulted in the same criminal abuses when accompanied by liquor sales, it too could be regulated. No restriction exists to the
(d) In view of the evil at which the ordinance is directed, I believe that the limitation of its application to places licensed to sell alcoholic beverages to be consumed on the premises satisfied the requirement that “the incidental restriction on alleged [art. 16 or] First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O‘Brien, supra at 377. This ordinance leaves Cindy Martini free to exercise her right of free speech, whether by dancing in the nude or otherwise, at any place in the city of Revere except where alcoholic beverages are sold and served, and it leaves the defendant free to employ or permit her to do so in those places. In my opinion this incidental restriction on the right of free speech, whether Cindy Martini‘s or the defendant‘s, cannot be held to be greater than reasonably necessary when viewed in balance with the city‘s interest in regulating the alcoholic beverage business, and protecting its citizenry, within its borders. The ordinance is “generally necessary to protect one or more of the legitimate governmental interests,” and is therefore not overly broad. Procunier v. Martinez, 416 U.S. 396, 414 (1974).
A similar application of the O‘Brien test has been made by the California Supreme Court in Crownover v. Musick, 9 Cal. 3d 405 (1973), cert. denied sub nom. Reynolds v. Sacramento, and sub nom. Owen v. Musick, 415 U.S. 931 (1974), to uphold local ordinances against contentions that they facially violated free speech guaranties. The local ordinances prohibited nudity “while participating in any ‘live act, demonstration or exhibition’ in any public place or by entertainers in establishments serving food or beverages, excepting in all instances theaters and similar establishments.” Id. at 424. For the purpose of the case the court assumed that the entertainment prohibited possessed a significant enough “communicative element” to bring the First Amendment into play. Id. at 423-427. It nevertheless upheld the ordinances on the basis of the O‘Brien analysis. Id.
In addition to my belief that the ordinance as applied here is valid under the test of the O‘Brien case, I also question the court‘s interpretation of, and reliance on, the cases of California v. LaRue, 409 U.S. 109 (1972), and Doran v. Salem Inn, Inc., 422 U.S. 922 (1975). The court, it appears, reads the LaRue case as holding that, but for the Twenty-first Amendment, the prohibition of nude dancing in licensed establishments would violate the free speech guaranty of the First Amendment. It reasons that the scope of the coverage of the First Amendment is generally the same as that of
It is my opinion, however, that the reading of the LaRue case supporting such an analysis is unnecessarily narrow. I find no language in the LaRue opinion itself that requires the conclusion that the Twenty-first Amendment is a sine qua non for upholding regulations of the type in question here. Dictum in the later Doran case does indeed tend to support such an interpretation as noted by this court in the present case. However, the still more recent case of Craig v. Boren, 429 U.S. 190 (1976), undermines this view. In Craig the Court relegates the Twenty-first Amendment to its historical position as “an exception to the normal operation of
I would not interpret or apply
In the circumstances of this case I do not believe that it is unconstitutional for the city of Revere to say to persons within its borders, that, if they want to drink alcoholic beverages and also to see or hear the conduct which is proscribed by the ordinance in question, they must do each in a different place.
Notes
“(a) It is forbidden to employ or permit any person in or on the licensed premises while such person is unclothed or in such attire as to expose to view any portion of the areola of the female breast or any portion of the pubic hair, cleft of the buttocks, or genitals.”
The pertinent language of art. 16 is: “The right of free speech shall not be abridged.”