Harris v. Entertainment Systems, Inc.

386 S.E.2d 140, 259 Ga. 701, 1989 Ga. LEXIS 532
CourtSupreme Court of Georgia
DecidedDecember 5, 1989
DocketS89A0297, S89A0298
StatusPublished
Cited by51 cases

This text of 386 S.E.2d 140 (Harris v. Entertainment Systems, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Entertainment Systems, Inc., 386 S.E.2d 140, 259 Ga. 701, 1989 Ga. LEXIS 532 (Ga. 1989).

Opinions

Gregory, Justice.

This appeal arises from an injunction entered in the Superior Court of Fulton County restraining the enforcement of OCGA §§ 3-3-40 to 3-3-46. These code sections were enacted “so as to prohibit certain nude and sexual conduct on premises where alcoholic beverages are sold or dispensed for consumption on the premises....” Ga. Laws 1988, p. 212. Appellee Entertainment Systems, Inc. (The Gold Club) operates a night club that hires female independent contractors to dance routines during which they remove some or all of their clothing. The Gold Club brought suit challenging the constitutionality of the 1988 Act under the Georgia Constitution of 1983. Enjoining the enforcement of the Act the superior court determined that the Act infringed upon protected speech and that this infringement was not the result of a proper exercise of police power. We affirm.

1. Two issues we address in this appeal are whether the Act infringes upon protected speech and, if so, whether the State is empowered under the U. S. or Georgia Constitutions to regulate that speech in this fashion.

a) It is well established that the realm of expression is greater than that which is constitutionally protected. For example, under Roth v. United States, 354 U. S. 476 (77 SC 1304, 1 LE2d 1498) (1957) and its progeny, the state may regulate expression which is obscene. The courts have also established that even if certain expression [702]*702is protected, the state, under its police power, can infringe upon it. E. g., Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 255-56 (297 SE2d 250) (1982). Thus, the first issue is whether the Act reaches expression that the First Amendment or 1983 Georgia Constitution Art. I, Sec. I; Par. V protect. As this Court has never directly addressed the issues this appeal raises with regards to Georgia’s protection of speech, we will apply First Amendment standards. 250 Ga. at 255, n. 5.

The Act prohibits, inter alia, the displaying or simulation on licensed premises of certain sexual acts, the touching or caressing of particular body parts, and partial or total nudity. OCGA § 3-3-41. The Act on its face, goes beyond merely prohibiting obscenity. For example, the statute prohibits mere nudity, which is not per se obscene. Jenkins v. Georgia, 418 U. S. 153, 161 (94 SC 2750, 41 LE2d 642) (1974); Flynt v. State, 153 Ga. App. 232, 233 (264 SE2d 669) (1980). Appellants argue that the proscribed conduct is not protected speech because it “is merely the cheap exploitation of human sexuality for commercial purposes.”1 This argument fails. For example in California v. LaRue, 409 U. S. 109 (93 SC 390, 34 LE2d 342) (1972), in which the Supreme Court upheld the facial constitutionality under the U. S. Constitution of regulations substantially the same as the statutes under attack here, the Court noted that at least some of the proscribed conduct was protected under the First Amendment. 409 U. S. at 118. See also Sable Communications of Ca. v. FCC, 57 U.S.L.W. 4290 (U. S., June 23, 1989); Young v. American Mini Theaters, 427 U. S. 50 (96 SC 2440, 49 LE2d 310) (1976). Therefore, because at least some of the proscribed conduct would fall within the purview of First Amendment protection, it is also protected by 1983 Georgia Constitution Art. I, Sec. I, Par. V.

b) Appellants argue that, under the Twenty-First Amendment, a state has the power to regulate sexual expression when combined with the sale of alcohol even though the expression would otherwise be protected. That is, under LaRue and New York State Liquor Auth. v. Bellanca, 452 U. S. 714 (101 SC 2599, 69 LE2d 357) (1981), this form of expression loses its First Amendment protection when combined with the sale of alcohol due to the state’s broad powers under the Twenty-First Amendment. This argument relies on a faulty analysis of these two cases because, although a state may have a certain amount of its police power restored to it under the Twenty-First Amendment that would otherwise be limited under the First Amendment, the expression is still within the purview of the First Amend[703]*703ment. Therefore, it is still protected by Georgia’s free expression guarantees. Because Georgia has no constitutional equivalent to the Twenty-First Amendment, the State’s police power, though possibly not limited under the U. S. Constitution, is limited by Georgia’s constitution. Cf. City of Newport v. Iacobucci, 479 U. S. 92, 96 (107 SC 383, 93 LE2d 334) (1986).

c) After determining that the Act infringes upon protected expression, the analysis must turn to whether the Act is a valid exercise of the State’s police power. Generally, the first step of this analysis is to determine whether the Act is content-neutral because it does not fit nicely into either a “content-neutral” or a “content-based” category. Appellants argue that the Act is neutral because it is directed towards the crime, etc., associated with these establishments, and The Gold Club argues that it is clearly content based because it is directed towards establishments offering sexually-oriented communication where alcohol is served. Regardless of whether the Act is content-neutral or content-based, the Act is an unconstitutional exercise of police powers even under the less stringent content-neutral test.

This Court has previously held that a content-neutral Act will be upheld even though it infringes upon protected expression if “it furthers an important government interest; if the government interest is unrelated to the suppression of speech; and if the incidental restriction of speech is no greater than is essential to the furtherance of that interest.” Paramount, 250 Ga. at 256. Thus, the first issue concerns the State’s interest furthered by the Act.

In its order, the superior court stated that because the legislative intent was not stated, the governmental interest was unknown. While the lack of a definitive statement by the legislature of the governmental interest makes it more difficult to ascertain the governmental interest sought to be furthered by the Act, the courts must determine that interest. In this case, we assume for the purposes of our analysis that the important governmental interest sought to be furthered by the Act is the prevention of the otherwise illegal activity found to be associated with establishments offering nude dancing and alcohol. We also assume that the Act furthers that interest. LaRue, 409 U. S. at 111; Bellanca, 452 U. S. at 717-18. This would satisfy the first and second prongs of the Paramount test.

The third prong of the Paramount test is that the incidental restriction of free speech is no greater than is essential. That is, the means must be narrowly drawn to further the intent of the Act without unnecessarily infringing on other protected speech. The Act fails in this regard.

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Bluebook (online)
386 S.E.2d 140, 259 Ga. 701, 1989 Ga. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-entertainment-systems-inc-ga-1989.