In the Supreme Court of Georgia
Decided: June 18, 2018
S18A0496. MAXIM CABARET, INC. d/b/a MAXIM CABARET et al. v. CITY OF SANDY SPRINGS, GEORGIA.
GRANT, Justice.
Appellant Maxim Cabaret, Inc. d/b/a Maxim Cabaret is a strip club in
Sandy Springs, Georgia, and appellant Theo Lambros is the club’s operator,
sole shareholder, and president (collectively “Maxim”). Maxim appeals from
the Fulton County Superior Court’s order granting summary judgment to the
City of Sandy Springs on Maxim’s legal challenges to city ordinances. We
hold that Maxim’s challenges to prior versions of the City’s ordinances that
have since been replaced or amended are moot; current adult business
ordinances prohibiting the sale of alcohol at businesses that offer live nude
entertainment constitutionally regulate negative secondary effects of strip
clubs without unduly inhibiting free speech or expression; and because the City
may constitutionally prohibit Maxim from obtaining a license to sell liquor on
its premises under the City’s adult business licensing ordinances, Maxim lacks standing to challenge the City’s alcohol licensing regulations. We affirm.
I.
Lambros has owned and operated Maxim Cabaret, an adult
entertainment establishment featuring nude dancing, in its current location
since March 1992. The club operated in unincorporated Fulton County until
December 1, 2005, when it came under the jurisdiction of the newly
incorporated City of Sandy Springs. In March 2003, Maxim stopped offering
full nudity and offered cabaret entertainment with its performers clothed or
partially clothed. At the same time, it applied for and was granted a Fulton
County license for on-premises consumption of alcoholic beverages. After
experiencing a drop in profits, however, Maxim resumed operating as a full-
nudity strip club several months later.
In December 2005, the Sandy Springs city council conducted hearings at
which it received and considered information concerning the negative
secondary effects of sexually oriented businesses. The minutes reflect that the
City was “deeply and profoundly concerned” about criminal activities
associated with “the commercial combination of live nudity and alcohol,”
including specifically “disorderly conduct, prostitution, public solicitation,
public indecency, fighting, battery, assaults, drug use, and drug trafficking.”
2 The City also expressed concern with other undesirable effects on the
community of such establishments, including “commercial depression of
property values, an acceleration of community blight in the surrounding
neighborhoods,” and increased costs for law enforcement and the judicial
system. Effective January 1, 2006, the City enacted several zoning, business
licensing, and alcohol licensing ordinances regulating adult entertainment
establishments.1 The ordinances included provisions that banned alcohol from
the premises of adult entertainment establishments and restricted the
permissible locations for such businesses. Under these regulations, Maxim is
not authorized to operate as a strip club in its current location.
In January 2006, Maxim sued the City in Fulton County Superior Court,
claiming that the City’s adult business regulations were unconstitutional and
seeking mandamus relief, declaratory and injunctive relief, and damages. 2 In
July 2011, the parties moved for summary judgment. The superior court heard
argument on the summary judgment motions on November 28, 2011 and May
1 The City’s definition of “adult entertainment establishment” encompasses businesses like Maxim that feature nude dancing. 2 The trial court found that because the City had not enforced its alcohol ban or the adult entertainment business location restrictions against Maxim during the litigation, Maxim had incurred no damages with respect to the licensing and location regulations. Maxim does not contest this finding on appeal. 3 4, 2015, and on June 10, 2016, issued an order granting summary judgment to
the City on all of Maxim’s claims.
Shortly after filing its first complaint, Maxim applied for a license to sell
and serve alcohol on its premises, which was denied. By agreement with the
City, however, Maxim has been allowed to operate with nude dancers and on-
premises alcoholic beverage sales in its current location during the pendency
of this litigation.
II.
During the decade-long course of this litigation in superior court, the
City amended its adult business ordinances multiple times, in many cases
changing or removing provisions that Maxim had alleged to be
unconstitutional. Maxim also filed eight amendments to its complaint, the last
of which consolidated all of its claims into a single pleading. In its eighth
amended complaint, Maxim reasserted its constitutional claims regarding some
of the City’s ordinances that had since been amended, contending that because
the original ordinances were unconstitutional and void, they could not be cured
by amendment. In granting the City’s summary judgment motion, the superior
court found that “the general rule—that repeal of a challenged provision of law
renders the challenge moot—applies.” On appeal, Maxim claims that this
4 finding was error. We disagree.
Maxim acknowledges that the City has since amended the ordinances at
issue to remove or replace the purportedly unconstitutional provisions, and it
has not cited to any evidence in the record showing that the complained-of
provisions were ever enforced against it. Nor has it shown that there is any
likelihood that the original ordinances will be re-enacted and enforced in the
future. Under the circumstances, Maxim’s claims regarding the previous
ordinances are moot. See Shelley v. Town of Tyrone, 302 Ga. 297, 307 (806
SE2d 535) (2017) (challenges to zoning ordinance that had been repealed and
replaced were moot); Pawnmart, Inc. v. Gwinnett Cty., 279 Ga. 19, 19 n.1 (608
SE2d 639) (2005) (County’s amendment of its ordinance to remove objected-
to provision rendered Pawnmart’s challenge to the provision moot).
Maxim’s claims are not saved by its argument that its constitutional
challenges to the City’s original adult business regulations are not moot
because the challenged ordinances were amended rather than repealed and
replaced. It is true that “once a statute is declared unconstitutional and void, it
cannot be saved by a subsequent statutory amendment, as there is, in legal
contemplation, nothing to amend.” In the Interest of R.A.S., 249 Ga. 236, 237
(290 SE2d 34) (1982). The same rule applies to ordinances. But the
5 ordinances challenged by Maxim were never declared unconstitutional, and the
mere existence of litigation challenging their constitutionality does not
preclude an amendment to remove the challenged provisions. See Shelley, 302
Ga. at 307.
Because the challenged ordinances no longer exist and were never
enforced against Maxim, the resolution of Maxim’s claims concerning those
ordinances “would amount to the determination of an abstract question not
arising upon existing facts or rights,” and the trial court correctly determined
that those claims were moot. Sexual Offender Registration Review Bd. v.
Berzett, 301 Ga. 391, 396 (801 SE2d 821) (2017) (citation and punctuation
omitted). “‘[I]t is a settled principle of Georgia law that the jurisdiction of the
courts is confined to justiciable controversies,’ and ‘[w]e will not decide the
constitutionality of a law where no justiciable case or controversy is
presented.’” Id. (citation omitted).
III.
We now turn to Maxim’s surviving claims regarding the constitutionality
of existing adult business ordinances.3 At the heart of Maxim’s challenges to
3 Maxim’s filings here and at the trial court level are extremely confusing and it is somewhat difficult to discern whether it is challenging current as well as previous adult business ordinances. Because the trial court appeared to believe that current ordinances 6 the City’s adult business regulations is its desire to continue operating as a full-
nudity strip club while also selling alcoholic beverages to its customers. The
current versions of both the adult business licensing code and the alcohol code
contain ordinances prohibiting adult entertainment establishments such as
Maxim from serving alcoholic beverages. But according to Maxim, the choice
between nude entertainment and alcohol sales is no choice at all, because if it
cannot have both it will be forced out of business entirely. Maxim argues on
that basis that the City’s ordinances infringe upon its right of free expression
under the First Amendment to the United States Constitution and Article I,
Section I, Paragraph V of the Georgia Constitution. This is not the first time
we have heard such a claim, and again, we disagree.
It is true that both the First Amendment and the free speech provision of
the Georgia Constitution have been held to protect nude dancing as a form of
expressive conduct. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (120
SCt 1382, 146 LE2d 265) (2000); Oasis Goodtime Emporium I, Inc. v. City of
Doraville, 297 Ga. 513, 520 (773 SE2d 728) (2015). But some limitation on
the time, place, or manner of such expression is constitutionally permissible,
were under challenge, and the City agreed in its March 7, 2018 letter brief to this Court, we conclude that the current ordinances are, in fact, at issue. But we encourage litigants to be as clear as possible in their filings to avoid any such questions. 7 as are appropriately limited regulations targeting the negative secondary
effects of adult entertainment establishments. See, e.g., Pap’s A.M., 529 U.S.
at 290-297; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (106
SCt 925, 89 LE2d 29) (1986); Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 87
(764 SE2d 398) (2014).
At the outset, we reject Maxim’s argument that the City’s regulations
prohibiting the sale of alcohol in nude dancing establishments should be
subjected to strict scrutiny.4 This Court and the U.S. Supreme Court have held
repeatedly that ordinances designed to combat the negative effects of sexually
oriented businesses on the surrounding community are to be evaluated as
4 For the first time on appeal, Maxim contends that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert, ___ U.S. ___, (135 SCt 2218, 192 LE2d 236) (2015) mandates that secondary-effects legislation be subjected to strict scrutiny. But Reed did not involve secondary-effects legislation. Nor did the opinion in Reed mention, much less overrule, prior cases in which the Supreme Court specifically held that regulations designed to reduce the negative secondary effects of adult entertainment businesses are treated as content neutral and thus subject to an intermediate level of scrutiny. See City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 447-448 (122 SCt 1728, 152 LE2d 670) (2002) (Kennedy, J., concurring in the judgment); Renton, 475 U.S. at 47-49. Under the circumstances, even if we found Maxim’s arguments persuasive (which we do not), we would continue to follow the Supreme Court’s directly applicable prior precedent. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (109 SCt 1917, 104 LE2d 526) (1989) (where precedent of the Supreme Court “has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions,” lower courts “should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”); see also Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, Ga., 703 Fed. Appx. 929, 935-936 (11th Cir. 2017) (unpublished) (applying the prior precedent rule and rejecting a similar argument for strict scrutiny of adult business regulations under Reed). 8 “content-neutral” regulations, which are subject to intermediate scrutiny. See,
e.g., Renton, 475 U.S. at 47-49; Oasis, 297 Ga. at 521; Goldrush II v. City of
Marietta, 267 Ga. 683, 690 (482 SE2d 347) (1997). The express purpose of
the challenged regulations is to combat the criminal activities and other
undesirable secondary effects of “the commercial combination of live nudity
and alcohol.” Sandy Springs Adult Licensing Code § 26-21 (15). Thus,
intermediate scrutiny applies.
Under intermediate scrutiny, a content-neutral regulation that causes an
incidental restriction on protected speech is constitutionally permissible if it
furthers an important governmental interest that is unrelated to the suppression
of speech, and its incidental restriction of protected speech is no greater than
is necessary to further the important governmental interest. See Paramount
Pictures Corp. v. Busbee, 250 Ga. 252, 255-256 (297 SE2d 250) (1982) (citing
United States v. O’Brien, 391 U.S. 367, 377 (88 SCt 1673, 20 LE2d 672)
(1968)). Here, before enacting its adult business regulations, the City
considered extensive testimony and evidence of the negative secondary effects
of strip clubs and other sexually oriented businesses in Sandy Springs and in
other cities across the country where such effects have been studied. The City
declared that it had “an important governmental interest in reducing crime and
9 protecting surrounding properties from adverse impacts, which interest is
unrelated to the suppression of speech,” and that it intended to “enact an
ordinance, narrowly tailored, sufficient to combat the undesirable secondary
effects of adult entertainment businesses, including the serving and
consumption of alcoholic beverages at adult entertainment facilities.” Sandy
Springs Adult Licensing Code § 26-21 (10) – (11).
At city council hearings, private investigators retained by the City to
conduct surveillance within adult clubs in Sandy Springs reported their
observation of illegal conduct within and around the clubs, including
prostitution, public lewdness, and public intoxication. Sandy Springs residents
testified about negative impacts of the adult businesses on their neighborhoods,
including offensive litter such as condoms and condom wrappers, discarded
underwear, and adult video covers. Residents also testified regarding beer
bottles and beer cans thrown in their streets and yards, and frequent late-night
dangerous driving along with resulting property damage. A local real estate
agent testified that it is more difficult to sell homes located near adult
businesses, and that such businesses depress the property values of nearby
homes.
The City also relied upon a summary of a Fulton County study
10 concerning the negative secondary effects of local adult businesses, as well as
multiple studies from other cities showing that adult businesses tend to
generate crime and lower property values in nearby neighborhoods. In April
2009, when the City amended its adult business regulations, it considered
additional information about the negative secondary effects of sexually
oriented businesses, including an expert report on studies conducted in
jurisdictions across the United States, as well as judicial decisions detailing
negative secondary effects of sexually oriented businesses. The legislative
record also contained information tending to show that the sale of alcohol
increased the negative secondary effects associated with sexually oriented
businesses.
The City’s prohibition of alcohol in nude dancing establishments thus
meets the first prong of the Paramount Pictures test because it “furthers the
important government interests of ‘attempting to preserve the quality of urban
life,’ and ‘reduc[ing] criminal activity and prevent[ing] the deterioration of
neighborhoods.’” Trop, 296 Ga. at 88 (internal citations omitted). And
because the evidence supports the City’s assertion that its adult business
ordinances were designed to decrease crime and protect property values rather
than to suppress speech, the ordinances also meet the second Paramount
11 Pictures prong, that the regulations address an interest unrelated to the
suppression of speech. See Goldrush II, 267 Ga. at 692 (“The city’s desire to
preserve the quality of urban life and its attempt to reduce crime and prevent
neighborhood deterioration by separating alcohol from adult entertainment are
important government interests unrelated to the suppression of speech.”).
Regarding the third and final prong of the Paramount Pictures test,
whether the incidental restriction of protected speech is limited to that
necessary to further the important government interest, Maxim’s arguments are
not new. We have repeatedly upheld bans on liquor sales in sexually oriented
businesses as a method of decreasing the undesirable secondary effects of such
businesses with minimal incidental effects on free expression. See, e.g. Oasis,
297 Ga. at 525-526; Trop, 296 Ga. at 87-88; Goldrush II, 267 Ga. at 692-693;
Chambers v. Peach Cty., 268 Ga. 672, 674 (492 SE2d 191) (1997). Maxim
claims that, if it is not allowed to offer both alcohol and nudity, its business
will be forced to close its doors because it will no longer be economically
viable. Maxim thus argues that by prohibiting the profitable combination of
live nudity and alcohol, the City will effectively eliminate constitutionally
protected conduct; that is, nude dance. But constitutional protections are
extended to speech and expression, not to profits. See Renton, 475 U.S. at 54
12 (“The inquiry for First Amendment purposes is not concerned with economic
impact.” (citation and punctuation omitted)). “Serving alcohol is not itself
protected expression, and [the City’s ordinance] leaves [Maxim’s] employees
free to express themselves as they wish through dance or otherwise.” Oasis,
297 Ga. at 525. Accordingly, the City’s adult entertainment ordinances survive
intermediate scrutiny.
IV.
Maxim also contends that the City’s licensing ordinances impermissibly
“create a nonconforming use” for purposes of the location restrictions within
the ordinances. It is true that the City’s adult business licensing ordinances
limit the locations in which adult businesses may operate. 5 It is also true that
Maxim concedes that this is permitted. And the trial court noted that the zoning
code contains the same location restrictions for adult businesses. Maxim
objects, however, to the licensing code’s provision for the amortization of
“nonconforming uses”—that is, adult businesses that were operating legally
5 Maxim also argues that the City’s zoning and business licensing ordinances together virtually eliminate viable sites for adult businesses within the City. But Maxim affirmatively waived this issue in the trial court, stating in response to the City’s motion for summary judgment that it had previously informed the City that “Plaintiffs would not be pursuing their claims against the City in regard to insufficient reasonable alternative avenues of communication. Therefore, Plaintiffs have not and will not argue said claims.”
13 prior to the passage of the code but are now prohibited in their current
location—which allows affected businesses to continue operating in their
current locations during a five-year grace period. Maxim argues that this
amortization provision is invalid because only a change in zoning ordinances
can create nonconforming uses, and there has been no change in zoning for
Maxim’s location. It is not entirely clear why Maxim would object to being
given a grace period within which to relocate its business;6 regardless, Maxim
has not shown that the amortization provision has been or will be applied to it,
and it therefore lacks standing to challenge that part of the City’s licensing
code. See Atlanta Taxicab Co. Owners Ass’n, Inc. v. City of Atlanta, 281 Ga.
342, 345 (638 SE2d 307) (2006) (to challenge a law, “the plaintiff must
normally show that it has interests or rights which are or will be affected” by
the law) (citation omitted) (emphasis in original).
First, the amortization provision by its terms applies only to those adult
businesses that produce a certificate of occupancy showing that they were
operating in compliance with all other laws and regulations when the City’s
location restrictions were enacted. The City denies that Maxim has ever
6 Maxim does not challenge the trial court’s conclusion that municipalities may constitutionally enforce location restrictions by requiring nonconforming businesses to change their business practices, change locations, or close within a reasonable time. 14 produced the required certificate of occupancy, and Maxim has not shown
otherwise by citation to the record on appeal. Second, even if the amortization
provision were applicable to Maxim, the five-year grace period would have
long since expired, rendering Maxim’s challenge to the provision moot.
Maxim’s amortization challenge thus fails.
V.
Maxim’s final contention is that the trial court erred in finding that it
lacked standing to challenge the City’s alcohol code. To mount that kind of
attack, a party must show that it has suffered some injury from the challenged
provisions. See Parker v. Leeuwenburg, 300 Ga. 789, 790 (797 SE2d 908)
(2017); Granite State Outdoor Advertising, Inc. v. City of Roswell, 283 Ga.
417, 420 (658 SE2d 587) (2008). And we have been clear that where a license
or permit is denied under a constitutionally permissible provision of a statute,
the complaining party lacks standing to challenge other provisions of the law
that were not applied to it. See Granite State, 283 Ga. at 420-421. Because
the City’s adult business licensing regulations prohibiting the sale of alcohol
are not unconstitutional, Maxim is not permitted to apply for an alcohol license
in the first place, and therefore lacks standing to challenge the City’s alcohol
code, which applies only to businesses applying for or possessing a license to
15 sell alcohol.
Judgment affirmed. All the Justices concur.
16 S18A0496. MAXIM CABARET, INC. d/b/a MAXIM CABARET et al. v. CITY OF SANDY SPRINGS.
PETERSON, J., concurring.
I concur fully in the Court’s decision, which is a faithful application of
our precedents. I write separately to express my concern with our approach to
constitutional interpretation reflected in those precedents.
I agree that Maxim’s free speech claims under the United States
Constitution and the Georgia Constitution should be rejected. As the Court’s
decision explains, their federal claim fails. And Maxim has not articulated a
single reason why the Georgia Constitution should be interpreted as giving
them any greater rights than the United States Constitution, and so their claim
under the Georgia Constitution necessarily also fails. But our cases holding
that the Georgia Constitution protects nude dancing at all rest on a shaky
premise.
Although we have extended state constitutional protection to nude
dancing for nearly 30 years, we have done so without any actual analysis of
the Georgia Constitution. We first held that the Georgia Constitution’s Speech
Clause protects nude dancing in Harris v. Entertainment Systems, Inc., 259 Ga. 701, 702 (1) (a) (386 SE2d 140) (1989). But we did so without any
consideration of the text, context, or history of that provision; indeed, we
explicitly declined to do any actual construction of our Constitution at all.
Rather, framing the issue as whether the statute in question reached expression
protected by the First Amendment or the Georgia Constitution’s Speech
Clause, we declared that, “[a]s 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.” Id. (citing Paramount Pictures Corp. v.
Busbee, 250 Ga. 252, 255 n.5 (297 SE2d 250) (1982) (stating that “[i]n the
absence of controlling state precedent[,] this court has applied analogous First
Amendment standards when construing the state constitution”)). We
concluded that “because at least some of the proscribed conduct would fall
within the purview of First Amendment protection, it [was] also protected by
1983 Georgia Constitution Art. I, Sec. I, Par. V.” Id. But simply importing
federal standards without analysis is not the way a state’s highest court should
interpret its constitution.
And ever since, when the question of the Georgia Constitution’s
protection of nude dancing has arisen, we’ve relied on Harris or its progeny.
See, e.g., Pel Asso, Inc. v. Joseph, 262 Ga. 904, 905 (1) (427 SE2d 264) (1993) 2 (citing Harris); Gravely v. Bacon, 263 Ga. 203, 205 (1) (429 SE2d 663) (1993)
(citing Pel Asso); Oasis Goodtime Emporium I, Inc. v. City of Doraville, 297
Ga. 513, 520 (3) (773 SE2d 728) (2015) (citing Harris and Gravely).
The text of the Georgia Constitution’s Speech Clause is quite different
from the Speech Clause of the First Amendment. See Ga. Const. Art. I, Sec. I,
Para. V (“No law shall be passed to curtail or restrain the freedom of speech or
of the press. Every person may speak, write, and publish sentiments on all
subjects but shall be responsible for the abuse of that liberty.”); see also Tucker
v. Atwater, No. S18C0437, 2018 Ga. LEXIS 404, at *5 n.3 (June 4, 2018)
(Peterson, J., concurring) (noting textual difference). Whether the text’s
reference to the right to “speak, write, and publish” describes the scope of the
“freedom of speech” that the Georgia Constitution protects is unclear to me.
And “the freedom of speech” that the Speech Clause protects must be
understood in the light of what that term meant at the time it was adopted. See
Olevik v. State, 302 Ga. 228, 235 (2) (c) (i) (806 SE2d 505) (2017). That term
appeared first in the Constitution of 1861. See Ga. Const. of 1861, Art. I, Sec.
8 (“Freedom of thought and opinion, freedom of speech, and freedom of the
press, are inherent elements of political liberty. But while every citizen may
3 freely speak, write and print, on any subject, he shall be responsible for the
abuse of the liberty.”). Similar provisions appeared in the 1865 and 1868
Constitutions. See Ga. Const. of 1865, Art. I, Sec. 6 (“Freedom of speech, and
freedom of the press, are inherent elements of political liberty. But while every
citizen may freely speak or write, or print on any subject, he shall be
responsible for the abuse of the liberty.”); Ga. Const. of 1868, Art. I, Sec. 9
(same with minor punctuation differences). In 1877, the Speech Clause took a
form almost identical to that applicable here, except that it used the phrase “the
liberty of speech” instead of “freedom of speech.” See Ga. Const. of 1877, Art.
I, Sec. I, Para. XV (“No law shall ever be passed to curtail, or restrain, the
liberty of speech, or of the press; any person may speak, write, and publish his
sentiments, on all subjects, being responsible for the abuse of that liberty.”).
And so it remained until the 1983 Constitution returned to the “freedom of
speech.” See Ga. Const. of 1945, Art. I, Sec. I, Para. XV (same); Ga. Const. of
1976, Art. I, Sec. I, Para. IV (same with minor punctuation differences). What
all of this means for the meaning of the Georgia Constitution’s Speech Clause
is a question we’ve never attempted to answer in this context.
In any event, in Harris, two Justices of this Court dissented from the
holding that the Georgia Constitution’s Speech Clause protects nude dancing: 4 The first Constitution of Georgia, in the year 1777, guaranteed freedom of the press. The 1877 Constitution guaranteed freedom of speech. I cannot believe that our forebears, in writing these protections, intended to vest in each Georgian a constitutional right to dance naked for tips in a barroom. Nor do I think that the citizens of Georgia who ratified the Constitution of 1983 intended to preserve or to create any such “right.”
Harris, 259 Ga. at 705 (3) (Weltner, J., joined by Marshall, C. J., dissenting).
We have since characterized as “interesting” an argument that Justice Weltner
was correct, but found that the answer wouldn’t affect the outcome, and so we
didn’t need to decide the question. See Oasis Goodtime Emporium, 297 Ga. at
520 n.11.
Admittedly, Justice Weltner’s dissent wasn’t exactly the fulsome
analysis of the “language, history, and context” of the Speech Clause that is
required. See Olevik, 302 Ga. at 234 (2) (b) n.3; see also Grady v. Unified
Gov’t of Athens-Clarke Cty., 289 Ga. 726, 731 (2) (b) n.3 (715 SE2d 148)
(2011) (explaining that proper state constitutional interpretation requires
“detailed analysis of their specific constitutional language, history, and
precedent and comparison” to similar federal provisions); Miller v. Deal, 295
Ga. 504, 511 (761 SE2d 274) (2014) (rejecting state constitutional argument
where “[n]owhere in the papers filed by the plaintiffs do we find a reasoned
5 argument — supported by an analysis of the pertinent constitutional text,
structure, and history — that the guarantee of due process in the Georgia
Constitution means something more in this context than the same guarantee in
the United States Constitution”). But there’s no reason why the Georgia
Constitution has to protect everything that the United States Constitution
protects. Olevik, 302 Ga. at 234 (2) (b) n.3 (noting that “a state constitution
may . . . offer less rights than federal law, so long as it does not affirmatively
violate federal law”). And although we have interpreted the Georgia
Constitution’s Speech Clause as more protective of speech than the First
Amendment in at least one context, see K. Gordon Murray Productions, Inc. v.
Floyd, 217 Ga. 784, 790-793 (125 SE2d 207) (1962) (holding prior restraint of
movies valid under United States Constitution but invalid under Georgia
Constitution), that doesn’t necessarily mean that it would be broader (or even
coextensive) in every other context.
But again, as in Oasis Goodtime Emporium, we don’t need to reconsider
our precedent today, because even under that precedent, Maxim loses. And,
indeed, in any case in which the plaintiff brings claims under both the United
States and Georgia Constitutions, there may not be a real reason to reconsider
that precedent. If future plaintiffs bring both claims and lose under the United 6 States Constitution, they’ll lose under the Georgia Constitution regardless of
whether it protects nude dancing the same or less than the United States
Constitution; reconsideration of our precedent under the Georgia Constitution
would matter in such a case only if we concluded that our Constitution was
more protective in this context. And if plaintiffs bring both claims and win
under the United States Constitution, the scope of the Georgia Constitution is
immaterial — an ordinance that violates the United States Constitution is
invalid regardless of whether it also violates the Georgia Constitution.
Nevertheless, if an appropriate case were to arise, we should again
consider the question we answered in Harris, but this time in the light of the
Georgia Constitution’s language, history, and context.
I am authorized to state that Justice Nahmias and Justice
Blackwell join in this concurrence.