Schultz v. City of Cumberland

536 N.W.2d 192, 195 Wis. 2d 554, 1995 Wisc. App. LEXIS 794

• Court: Court of Appeals of Wisconsin
• Decided: June 27, 1995
• Docket: 94-3106
• Status: Published

Opinions

LaROCQUE, J.

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 (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 "non-speech" 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 (footnotes omitted).

The O'Brien analysis was then applied in California v. La Rue, 409 U.S. 109 (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 (quoting Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41 (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 (quoting O'Brien, 391 U.S. at 376).

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.

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 (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 718.⁴

Newport v. Iacobucci, 479 U.S. 92 (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 96.⁵

Schultz relies upon the First Amendment discussion found in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (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. 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 563.⁶

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. It applied the four-part test oí O'Brien, 391 U.S. at 376-77, 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. 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.

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 (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 (Souter, J., concurring).

The four-member dissenting opinion, authored by Justice White, disagreed with the conclusion that the law was not aimed at expression because dancing "inherently embodies the expression and communication of ideas and emotions." Id. at 587 (White, J., dissenting) (quoting Miller v. Civil City, 904 F.2d 1081, 1987 (1990)).

The Barnes dissent is especially noteworthy in relation to the present dispute because it declared: "Furthermore, if nude dancing in barrooms, as compared with other establishments, is the most worrisome problem, the State could invoke its Twenty-first Amendment powers and impose appropriate regulation." Id. at 594 (White, J., dissenting).

Because Barnes was not a Twenty-first Amendment case, it is not dispositive here. Further, Iacobucci is directly on point. The city ordinance in that case related to establishments licensed to sell liquor, and declared "[i]t shall be unlawful and a person is guilty of performing nude or nearly nude ... See note 5. The Cumberland ordinance here declares it a violation to "engage in any live act, demonstration, dance or exhibition . . . See note 1. We perceive no distinction between a "performance" and an "act, demonstration, dance or exhibition." Thus, as was true in Iacobucci, even though the ordinance is couched in terms of conduct, it is obviously aimed at nudity, simulated nudity and real or simulated sexual intercourse or sexual contact rather than speech.

Bellanca is also directly on point in that the United States Supreme Court viewed the issue in the case as follows: "The question presented in this case is the power of a State to prohibit topless dancing in an establishment licensed by the State to serve liquor." Id. at 714. The Court concluded: "The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." Id. at 707.

Schultz contended in his oral argument on this appeal that the absence of a statement of legislative purpose by the Cumberland City Council prevents the courts from reaching the conclusion that an important or substantial governmental interest is furthered by the ordinance. We conclude that the case law does not compel an express statement of legislative purpose.

There did not appear to be any express legislative statement of the governmental interest at stake in State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847 (1994). In Thiel, the court unanimously rejected a constitutional free speech challenge to § 948.11, STATS., relating to the dissemination of obscene material "harmful to children." Without requiring a statement from the legislature, the court found two compelling state interests: The desire to support parents and others with primary responsibility for safeguarding our youth, and the state's independent interest in the well-being of its youth. Id. at 526, 515 N.W.2d at 855.

Other jurisdictions have followed a similar practice. In Knudtson v. Coates, 519 N.W.2d 166 (Minn. 1994), the Minnesota Supreme Court upheld as valid under the Minnesota Constitution a city ordinance banning nudity in liquor establishments. The court noted that the city had presented no evidence of legislative intent or purpose. Id. at 167. Nevertheless, it upheld the ordinance after considering the factors that "the City Council may have felt" were important: That the particular combination of liquor, nudity and sex could be construed as a "subliminal endorsement for unlawful sexual harassment." Id. at 169.

The United States Supreme Court did not seem to require an express statement of the state's interest in Barnes. Different justices attributed disparate important governmental interests underlying the enactment of the Indiana anti-nudity statute: Chief Justice Rehnquist believed it to be the public's perceived recognition of the immorality in public nudity. Id. at 568. Justice Souter, on the other hand, believed it to be the secondary effects of adult entertainment establishments, prostitution, sexual assaults and other criminal activity. Id. at 582 (Souter, J., concurring). We conclude that the absence of an express statement of legislative purpose is not essential to its validity. .

Next Schultz urges us to adopt the holding in some state jurisdictions that the broader legislative authority found in the Twenty-first Amendment is not applicable to the states absent the adoption of a similar amendment to the state constitution. This has been the view, for example, in Minnesota, New York, Alaska and Massachusetts. A contrary view is held in Florida, Montana, New Mexico and Connecticut, In Dydyn v. Department of Liquor Control, 531 A.2d 170 (Conn. App. Ct. 1987), a state regulation banning nude dancing was upheld, despite the contention that the state constitution contained no counterpart to the Twenty-first Amendment. Id. at 173. The court first cited La Rue:

Indeed, rather than merely restoring to the States their pre-existing police power over the sale of alcoholic beverages by repealing the Eighteenth Amendment, the second section of the Twenty-first Amendment expressly reserves to the States a power to regulate traffic in liquor: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Thus, although the States "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."

Dyden, 531 A.2d at 174 (quoting La Rue, 409 U.S. at 114 (emphasis in original)).

The Connecticut court concluded:

This federally recognized power on the part of the states to control the commercial distribution of alcoholic beverages within their respective boundaries does not exist in a vacuum; nor is it limited to the confines of the federal constitution. The power conferred by the twenty-first amendment does not simply evaporate once the analysis shifts to a determination of the right to free expression under our state constitution. Rather, this independent, federal right to control the traffic in liquor subsists, and, pursuant to the supremacy clause, must be given full recognition and effect, even when we consider the provisions of our own constitution.

Id. (Footnote omitted.)⁷

The Wisconsin Supreme Court has traditionally interpreted the free speech protections under our constitution to be co-extensive with those declared by the United States Supreme Court interpreting the federal constitution. While we recognize that this case presents a case of first impression — whether the potential, albeit limited, encroachment on symbolic speech is broader in Twenty-first Amendment cases — any departure from decisions of the United States Supreme Court should be taken by the Wisconsin Supreme Court and not this court.

"The police power of a municipality is broad and, in general, the courts may intercede only when the exercise of that power is clearly unreasonable." CIT Group/Equip. Fin., Inc. v. Germantown, 163 Wis. 2d 426, 433, 471 N.W.2d 610, 613 (1991). Further, the "Twenty-first Amendment has given broad power to the States and generally they may delegate this power as they see fit." Iacobucci, 479 U.S. at 96. The Wisconsin legislature has granted municipalities the authority to prescribe additional regulations for the sale of alcoholic beverages not in conflict with ch. 125, STATS.⁸ Pursuant to this authority, the City may prescribe forfeitures or license suspension or revocation for violations of a municipal ordinance. Id. The legislative note to § 125.10(1), Stats., indicates that it was adopted to clarify that municipal regulations may incorporate state law or provide additional regulations as long as the regulations do not conflict with state law. Laws of 1981, ch. 79.

Schultz next challenges the Cumberland ordinance's validity on grounds of overbreadth. He argues that the ordinance facially bars "Wearing a t-shirt picturing someone's buttocks; a couple embracing fully clothed, body-to-body, on a stage; a woman portraying a man by stuffing something down her pants in a comically exaggerated way; or a demonstration of breast feeding." We disagree. The discussion of the over-breadth challenge was unanimously rejected by our supreme court when examining the provisions of § 948.11, Stats., relating to the dissemination of obscene materials "harmful to children." Thiel, 183 Wis. 2d at 518-23, 515 N.W.2d at 852-54. The Court stated the general rules: "The doctrine of substantial overbreadth establishes an exception to the general rule that 'a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.1" Id. at 520, 515 N.W.2d at 853 (quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989)).

Further,

A reviewing court must view the overbreadth doctrine as "'strong medicine1" which should be employed only "with hesitation, and then 'only as a last resort.'" New York v. Ferber, 458 U.S. 747, 769 (1981). ... Facial challenges to a statute ... do not succeed when a limiting construction is available to maintain the legislation's constitutional integrity. Broadrick [v. Oklahoma], 413 U.S. [601] at 613 (1973)]. Additionally, since [the statute] encompasses both speech and conduct, the overbreadth challenge must be both real and substantial.

Id. at 521, 515 N.W.2d at 853.

Finally,

A statute challenged as unconstitutionally over-broad can be "cured" by means of judicial interpretation, which provides for a narrowing and validating construction of the law. The court may also excise or sever the unconstitutional portion of the statute, leaving the rest of the legislation in force. Finally, the court may strike down the entire statute, holding it to be unconstitutional on its face.

Id. at 522, 515 N.W.2d at 854.

Schultz's examples of conduct he contends are facially barred by the ordinance do not withstand scrutiny. Pictures on a t-shirt do not "simulate" nudity. Webster's New Collegiate Dictionary 1083 (1977) defines "simulate" as "1: to assume the outward qualities of appearance of usu. with the intent to deceive ...." Webster's Third New Int'l Dictionary 2122 (Unabr. 1976) equates "simulate" with "feign" or "imitate." A fair reading of the ordinance discloses that it is intended to ban only those simulations that give the appearance of nudity by the actor and does not purport to ban artistic reproductions of nudity.

Similarly, unless the described embrace in Schultz's example were an attempt to "simulate" sexual intercourse or sexual contact, the ordinance is not engaged. Nor does the ordinance appear to ban a performer from "stuffing something down her pants in a comically exaggerated way," absent the use of a "simulated" penis. As to the final example, a demonstration of breast feeding, apart from the fact that it would not be necessary to "[e]xpose[] any portion of the female breast at or below the areola thereof," the conduct prohibited by the ordinance, it seems obvious that this example fails to provide a "real and substantial" challenge to an ordinance aimed at controlling nude performances in liquor bars.

Schultz also challenges the ordinance's validity on grounds of vagueness. He argues that the language of the law "could conceivably bar gyrating one's hips on stage, as did Elvis Presley (simulated sexual intercourse); a woman performer suggestively licking her lips (simulated fellatio); or even most types of social dancing (sexual contact)." He also argues that "[a] reasonable reading of the ordinance would prohibit the wearing of a t-shirt depicting Michelangelo's David." We do not view the ordinance as preventing the conduct described for the reasons similar to our rejection of the overbreadth challenge and the established definition of "simulates." Further, as to general allegations of vagueness, a law that is constitutional on its face should not be condemned in advance, but may possibly be condemned later because of the way it is administered in fact. Milwaukee County Pavers Ass'n. v. Fiedler, 922 F.2d 419, 423 (7th Cir. 1991).

By the Court. — Judgment affirmed.

1 The parties stipulated to a stay of enforcement of the ordinance pending a judicial determination of its validity.

The parties agreed that the ordinance reads:

12.03(12) Improper Exhibitions: (effective 7/1/94)

(a) It shall be unlawful for any person to perform, or for any licensee or manager or agent of the license [e] to permit any employee, entertainer or patron to engage in any live act, demonstration, dance or exhibition on the licensed premises which:

1. Expose his or her genitals, pubic hair, perineum, anal region or pubic hair region; or

2. Expose any device, costume or covering which gives the appearance of or simulates genitals, pubic hair, perineum, anal region or pubic hair region; or

3. Exposes any portion of the female breast at or below the areola thereof; or

4. To engage in or simulate sexual intercourse and/or sexual contact, including the touching of any portion of the female breast or the male and/or female genitals.

(b) It shall be unlawful for any licensee or manager or agent of the licensee knowingly to permit any exhibition prohibited by subpara-graph (a) to be exposed for viewing by persons within the licensed premises.

(c) Any person, partnership or corporation who violates any of the provisions of the subsection shall be subject to penalty as prescribed in Section 25.04 of the Municipal Code, in addition to liquor license suspension, revocation, or nonrenewal as provided by Section 12.03(7) of this code and by Section 125.12(1) Wis. Stats. A separate offense shall be deemed committed on each day on which a violation occurs or continues.

2 We note that the shift of the burden to prove constitutionality in First Amendment cases applied in Madison v. Baumann, 162 Wis. 2d 660, 470 N.W.2d 296 (1991), and other Wisconsin decisions is arguably inapplicable in cases where the government relies upon the Twenty-first Amendment. In a series of Twenty-first Amendment decisions in which First Amendment rights were interposed against nude performances in licensed liquor bars, the United States Supreme Court consistently and expressly accorded a presumption of constitutionality to the legislation. In California v. La Rue, 409 U.S. 109, 118-19 (1972), for example, the Court said: "Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution." The Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment and rendered the National Prohibition Act inoperative. The Twenty-first Amendment bestowed upon the states broad regulatory power over liquor sales within their territories. See Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 42 (1966). However, if the well-established exception to the presumption of constitutionality is to be inapplicable in liquor license cases, we believe that decision must come from the Wisconsin Supreme Court.

3 The First Amendment to the United States Constitution says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

To date, the Wisconsin Supreme Court has considered the protection of free speech under art. I, § 3 of the Wisconsin Constitution to be co-extensive with the First Amendment. Lawson v. Housing Authority, 270 Wis. 269, 274, 70 N.W.2d 605, 608 (1955). ’While there is no question the Wisconsin Constitution may be interpreted to provide broader individual protection than granted by the United States Constitution, that determination should come from the Wisconsin Supreme Court.

4 The statute under review provided:

No retail licensee for on premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof.

5 The ordinance under review provided:

It shall be unlawful for and a person is guilty of performing nude or nearly nude activity when that person appears on a business establishment's premises in such a manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, or when any female appears on a business establishment's premises in such manner or attire as to expose to view [a] portion of the breast referred to as the areola, nipple, or simulation thereof.

6 The Indiana statute defined "Nudity" as "the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discemi-bly turgid state." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 n.2 (1991).

7 The United States Constitution, art. VI, cl. 2 provides in relevant part: "This Constitution... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

8 Section 125.10, STATS., provides:

Municipal regulation. (1) Authorization. Any municipality may enact regulations incorporating any part of this chapter and may prescribe additional regulations for the sale of alcohol beverages, not in conflict with this chapter. The municipality may prescribe forfeitures or license suspension or revocation for violations of any such regulations. Regulations providing forfeitures or license suspension or revocation must be adopted by ordinance.