California v. LaRue
409 U.S. 109 (1972)

Annotate this Case

U.S. Supreme Court

California v. LaRue, 409 U.S. 109 (1972)

California v. LaRue

No. 71-36

Argued October 10, 1972

Decided December 5, 1972

409 U.S. 109




Following hearings, the California Department of Alcoholic Beverage Control issued regulations prohibiting explicitly sexual live entertainment and films in bars and other establishments licensed to dispense liquor by the drink. A three-judge District Court held the regulations invalid under the First and Fourteenth Amendments, concluding that, under standards laid down by this Court, some of the proscribed entertainment could not be classified as obscene or lacking a communicative element.

Held: In the context not of censoring dramatic performances in a theater, but of licensing bars and nightclubs to sell liquor by the drink, the States have broad latitude under the Twenty-first Amendment to control the manner and circumstances under which liquor may be dispensed, and here the conclusion that sale of liquor by the drink and lewd or naked entertainment should not take place simultaneously in licensed establishments was not irrational, nor was the prophylactic solution unreasonable. Pp. 409 U. S. 114-119.

326 F.Supp. 348, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 409 U. S. 119. DOUGLAS, J., post, p. 409 U. S. 120, BRENNAN, J., post, p. 409 U. S. 123, and MARSHALL, J., post, p. 409 U. S. 123, filed dissenting opinions.

Page 409 U. S. 110

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Appellant Kirby is the director of the Department of Alcoholic Beverage Control, an administrative agency vested by the California Constitution with primary authority for the licensing of the sale of alcoholic beverages in that State, and with the authority to suspend or revoke any such license if it determines that its continuation would be contrary to public welfare or morals. Art. XX, § 22, California Constitution. Appellees include holders of various liquor licenses issued by appellant, and dancers at premises operated by such licensees. In 1970, the Department promulgated rules regulating the type of entertainment that might be presented in bars and nightclubs that it licensed. Appellees then brought this action in the United States District Court for the Central District of California under the provisions of 28 U.S.C. §§ 1331, 1343, 2201, 2202, and 42 U.S.C. § 1983. A three-judge court was convened in accordance with 28 U.S.C. §§ 2281 and 2284, and the majority of that court held that substantial portions of the regulations conflicted with the First and Fourteenth Amendments to the United States Constitution. [Footnote 1]

Concerned with the progression in a few years' time from "topless" dancers to "bottomless" dancers and other forms of "live entertainment" in bars and nightclubs that it licensed, the Department heard a number of witnesses on this subject at public hearings held prior to the promulgation of the rules. The majority opinion

Page 409 U. S. 111

of the District Court described the testimony in these words:

"Law enforcement agencies, counsel and owners of licensed premises and investigators for the Department testified. The story that unfolded was a sordid one, primarily relating to sexual conduct between dancers and customers. . . ."

326 F.Supp. 348, 352.

References to the transcript of the hearings submitted by the Department to the District Court indicated 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 Department had occurred. Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.

Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises.

At the conclusion of the evidence, the Department promulgated the regulations here challenged, imposing standards as to the type of entertainment that could be presented in bars and nightclubs that it licensed. Those portions of the regulations found to be unconstitutional by the majority of the District Court prohibited the following kinds of conduct on licensed premises:

"(a) The performance of acts, or simulated acts, of"

"sexual intercourse, masturbation, sodomy,

Page 409 U. S. 112

bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;"

"(b) The actual or simulated 'touching, caressing or fondling on the breast, buttocks, anus or genitals';"

"(c) The actual or simulated 'displaying of the pubic hair, anus, vulva or genitals';"

"(d) The permitting by a licensee of 'any person to remain in or upon the licensed premises who exposes to public view any portion of his or her genitals or anus'; and, by a companion section,"

"(e) The displaying of films or pictures depicting acts a live performance of which was prohibited by the regulations quoted above."

Rules 143.3 and 143.4. [Footnote 2]

Shortly before the effective date of the Department's regulations, appellees unsuccessfully sought discretionary review of them in both the State Court of Appeal and the Supreme Court of California. The Department then joined with appellees in requesting the three-judge District Court to decide the merits of appellees' claims that the regulations were invalid under the Federal Constitution. [Footnote 3]

Page 409 U. S. 113

The District Court majority upheld the appellees' claim that the regulations in question unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments to the United States Constitution. It reasoned that the state regulations had to be justified either as a prohibition of obscenity in accordance with the Roth line of decisions in this Court (Roth v. United States,354 U. S. 476 (1957)), or else as a regulation of "conduct" having a communicative element in it under the standards

Page 409 U. S. 114

laid down by this Court in United States v. O'Brien,391 U. S. 367 (1968). Concluding that the regulations would bar some entertainment that could not be called obscene under the Roth line of cases, and that the governmental interest being furthered by the regulations did not meet the tests laid down in O'Brien, the court enjoined the enforcement of the regulations. 326 F.Supp. 348. We noted probable jurisdiction. 404 U.S. 999.

The state regulations here challenged come to us not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink. In Seagram & Sons v. Hostetter,384 U. S. 35, 384 U. S. 41 (1966), this Court said:

"Consideration of any state law regulating intoxicating beverages must begin with the Twenty-first Amendment, the second section of which provides that:"

"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."

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. In Hostetter v. Idlewild Liquor Corp.,377 U. S. 324, 377 U. S. 330 (1964), the Court reaffirmed that, by reason of the Twenty-first Amendment,

"a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders."


Page 409 U. S. 115

earlier, the Court stated in State Board v. Young's Market Co.,299 U. S. 59, 64 (1936):

"A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."

These decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations. In Wisconsin v. Constantineau,400 U. S. 433 (1971), the fundamental notice and hearing requirement of the Due Process Clause of the Fourteenth Amendment was held applicable to Wisconsin's statute providing for the public posting of names of persons who had engaged in excessive drinking. But the case for upholding state regulation in the area covered by the Twenty-first Amendment is undoubtedly strengthened by that enactment:

"Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other and in the context of the issues and interests at stake in any concrete case."

Hostetter v. Idlewild Liquor Corp., supra, at 377 U. S. 332.

A common element in the regulations struck down by the District Court appears to be the Department's conclusion that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place in bars and cocktail lounges for which it has licensing responsibility. Based on the evidence from the hearings that it cited to the District Court, and mindful of the principle that, in legislative rulemaking, the agency may reason from the particular to the general, Assigned Car Cases,274 U. S. 564, 274 U. S. 583 (1927), we do

Page 409 U. S. 116

not think it can be said that the Department's conclusion in this respect was an irrational one.

Appellees insist that the same results could have been accomplished by requiring that patrons already well on the way to intoxication be excluded from the licensed premises. But wide latitude as to choice of means to accomplish a permissible end must be accorded to the state agency that is itself the repository of the State's power under the Twenty-first Amendment. Seagram & Sons v. Hostetter, supra, at 384 U. S. 48. Nothing in the record before us or in common experience compels the conclusion that either self-discipline on the part of the customer or self-regulation on the part of the bartender could have been relied upon by the Department to secure compliance with such an alternative plan of regulation. The Department's choice of a prophylactic solution instead of one that would have required its own personnel to judge individual instances of inebriation cannot, therefore, be deemed an unreasonable one under the holdings of our prior cases. Williamson v. Lee Optical Co.,348 U. S. 483, 348 U. S. 487-488 (1955).

We do not disagree with the District Court's determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e.g., Sunshine Book Co. v. Summerfield,355 U. S. 372 (1958), rev'g per curiam, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O'Brien, supra.

Our prior cases have held that both motion pictures and theatrical productions are within the protection of

Page 409 U. S. 117

the First and Fourteenth Amendments. In Joseph Burstyn, Inc. v. Wilson,343 U. S. 495 (1952), it was held that motion pictures are "included within the free speech and free press guaranty of the First and Fourteenth Amendments," though not "necessarily subject to the precise rules governing any other particular method of expression." Id. at 343 U. S. 502-503. In Schacht v. United States,398 U. S. 58, 398 U. S. 63 (1970), the Court said with respect to theatrical productions:

"An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance."

But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of "conduct" or "action," Hughes v. Superior Court,339 U. S. 460 (1950); Giboney v. Empire Storage Co.,336 U. S. 490 (1949). [Footnote 4] In O'Brien, supra, 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

Page 409 U. S. 118

limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."

391 U.S. at 391 U. S. 376.

The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, "performances" that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.

Viewed in this light, we conceive the State's authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. 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 liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater.

The Department's conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first

Page 409 U. S. 119

Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution. [Footnote 5]

The contrary holding of the District Court is therefore


[Footnote 1]

Appellees in their brief here suggest that the regulations may exceed the authority conferred upon the Department as a matter of state law. As the District Court recognized, however, such a claim is not cognizable in the suit brought by these appellees under 42 U.S.C. § 1983.

[Footnote 2]

In addition to the regulations held unconstitutional by the court below, appellees originally challenged Rule 143.2 prohibiting topless waitresses, Rule 143.3(2) requiring certain entertainers to perform on a stage at a distance away from customers, and Rule 143.5 prohibiting any entertainment that violated local ordinances. At oral argument in that court, they withdrew their objections to these rules, conceding

"that topless waitresses are not within the protection of the First Amendment; that local ordinances must be independently challenged depending upon their content; and that the requirement that certain entertainers must dance on a stage is not invalid."

326 F.Supp. 348, 350-351.

[Footnote 3]

MR. JUSTICE DOUGLAS, in his dissenting opinion, suggests that the District Court should have declined to adjudicate the merits of appellees' contention until the appellants had given the "generalized provisions of the rules . . . particularized meaning." Since parties may not confer jurisdiction either upon this Court or the District Court by stipulation, the request of both parties in this case that the court below adjudicate the merits of the constitutional claim does not foreclose our inquiry into the existence of an "actual controversy" within the meaning of 28 U.S.C. § 2201 and Art. III, § 2, cl. 1, of the Constitution.

By pretrial stipulation, the appellees admitted they offered performances and depictions on their licensed premises that were proscribed by the challenged rules. Appellants stipulated they would take disciplinary action against the licenses of licensees violating such rules. In similar circumstances, this Court held that, where a state commission had "plainly indicated" an intent to enforce an act that would affect the rights of the United States, there was a "present and concrete" controversy within the meaning of 28 U.S.C. § 2201 and of Art. III. California Comm'n v. United States,355 U. S. 534, 355 U. S. 539 (1958). The District Court therefore had jurisdiction of this action.

Whether this Court should develop a nonjurisdictional limitation on actions for declaratory judgments to invalidate statutes on their face is an issue not properly before us. Cf. Ashwander v. Tennessee Valley Authority,297 U. S. 288, 297 U. S. 341 (1936)(Brandeis, J., concurring). Certainly a number of our cases have permitted attacks on First Amendment grounds similar to those advanced by the appellees, see, e.g., Zwickler v. Koota,389 U. S. 241 (1967); Keyishian v. Board of Regents,385 U. S. 589 (1967); Baggett v. Bullitt,377 U. S. 360 (1964), and we are not inclined to reconsider the procedural holdings of those cases in the absence of a request by a party to do so.

[Footnote 4]

Similarly, States may validly limit the manner in which the First Amendment freedoms are exercised, by forbidding sound trucks in residential neighborhoods, Kovacs v. Cooper,336 U. S. 77 (1949), and may enforce a nondiscriminatory requirement that those who would parade on a public thoroughfare first obtain a permit. Cox v. New Hampshire,312 U. S. 569 (1941). Other state limitations on the "time, manner and place" of the exercise of First Amendment rights have been sustained. See, e.g., Cameron v. Johnson,390 U. S. 611 (1968), and Cox v. Louisiana,379 U. S. 559 (1965).

[Footnote 5]

Because of the posture of this case, we have necessarily dealt with the regulations on their face, and have found them to be valid. The admonition contained in the Court's opinion in Seagram & Sons v. Hostetter,384 U. S. 35, 384 U. S. 52 (1966), is equally in point here:

"Although it is possible that specific future applications of [the statute] may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid."

MR. JUSTICE STEWART, concurring.

A State has broad power under the Twenty-first Amendment to specify the times, places, and circumstances where liquor may be dispensed within its borders. Seagram & Sons v. Hostetter,384 U. S. 35; Hostetter v. Idlewild Liquor Corp.,377 U. S. 324, 377 U. S. 330; Dept. of Revenue v. James Beam Co.,377 U. S. 341, 377 U. S. 344, 377 U. S. 346; California v. Washington,358 U. S. 64; Ziffrin, Inc. v. Reeves,308 U. S. 132; Mahoney v. Joseph Triner Corp.,304 U. S. 401; State Board v. Young's Market Co.,299 U. S. 59. I should suppose, therefore, that nobody would question the power of California to prevent the sale of liquor by the drink in places where food is not served, or where dancing is permitted, or where gasoline is sold. But here, California has provided that liquor by the drink shall not be sold in places where certain grossly sexual exhibitions are performed, and that action by the State, say the appellees, violates the First and Fourteenth Amendments. I cannot agree.

Every State is prohibited by these same Amendments from invading the freedom of the press and from impinging

Page 409 U. S. 120

upon the free exercise of religion. But does this mean that a State cannot provide that liquor shall not be sold in bookstores, or within 200 feet of a church? I think not. For the State would not thereby be interfering with the First Amendment activities of the church or the First Amendment business of the bookstore. It would simply be controlling the distribution of liquor, as it has every right to do under the Twenty-first Amendment. On the same premise, I cannot see how the liquor regulations now before us can be held, on their face, to violate the First and Fourteenth Amendments. *

It is upon this constitutional understanding that I join the opinion and judgment of the Court.

* This is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor within its borders. And it most assuredly is not to say that the Twenty-first Amendment necessarily overrides in its allotted area any other relevant provision of the Constitution. See Wisconsin v. Constantineau,400 U. S. 433; Hostetter v. Idlewild Liquor Corp.,377 U. S. 324, 377 U. S. 329-334; Dept. of Revenue v. James Beam Co.,377 U. S. 341.

MR. JUSTICE DOUGLAS, dissenting.

This is an action for a declaratory judgment, challenging Rules and Regulations of the Department of Alcoholic Beverage Control of California. It is a challenge of the constitutionality of the rules on their face; no application of the rules has in fact been made to appellees by the institution of either civil or criminal proceedings. While the case meets the requirements of "case or controversy" within the meaning of Art. III of the Constitution, and therefore complies with Aetna Life Ins. Co. v. Haworth,300 U. S. 227, the case does not mark the precise impact of these rules against licensees who sell alcoholic beverages in California. The opinion

Page 409 U. S. 121

of the Court can, therefore, only deal with the rules in the abstract.

The line which the Court draws between "expression" and "conduct" is generally accurate; and it also accurately describes in general the reach of the police power of a State when "expression" and "conduct" are closely brigaded. But we still do not know how broadly or how narrowly these rules will be applied.

It is conceivable that a licensee might produce in a garden served by him a play -- Shakespearean perhaps or one in a more modern setting -- in which, for example, "fondling" in the sense of the rules appears. I cannot imagine that any such performance could constitutionally be punished or restrained, even though the police power of a State is now buttressed by the Twenty-first Amendment. [Footnote 2/1] For, as stated by the Court, that Amendment did not supersede all other constitutional provisions "in the area of liquor regulations." Certainly a play which passes muster under the First Amendment is not made illegal because it is performed in a beer garden.

Chief Justice Hughes stated the controlling principle in Electric Bond & Share Co. v. SEC,303 U. S. 419, 303 U. S. 443:

"Defendants are not entitled to invoke the Federal Declaratory Judgment Act in order to obtain an advisory decree upon a hypothetical state of facts. . . . By the cross-bill, defendants seek a judgment that each and every provision of the Act is unconstitutional. It presents a variety of hypothetical controversies which may never become real. We are invited to enter into a speculative inquiry for the

Page 409 U. S. 122

purpose of condemning statutory provisions the effect of which in concrete situations, not yet developed, cannot now be definitely perceived. We must decline that invitation. . . ."

The same thought was expressed by Chief Justice Stone in Federation of Labor v. McAdory,325 U. S. 450, 325 U. S. 470-471. Some provisions of an Alabama law regulating labor relations were challenged as too vague and uncertain to meet constitutional requirements. The Chief Justice noted that state courts often construe state statutes so that in their application they are not open to constitutional objections. Id. at 325 U. S. 471. He said that for us to decide the constitutional question "by anticipating such an authoritative construction" would be either

"to decide the question unnecessarily or rest our decision on the unstable foundation of our own construction of the state statute which the state court would not be bound to follow. [Footnote 2/2]"

Ibid. He added:

"In any event, the parties are free to litigate in the state courts the validity of the statute when actually applied to any definite state of facts, with the right of appellate review in this Court. In the exercise of this Court's discretionary power to grant or withhold the declaratory judgment remedy, it is of controlling significance that it is in the public interest to avoid the needless determination of constitutional questions and the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes."


Those precedents suggest to me that it would have been more provident for the District Court to have declined

Page 409 U. S. 123

to give a federal constitutional ruling, until and unless the generalized provisions of the rules were given particularized meaning.

[Footnote 2/1]

Section 2 of the Twenty-first Amendment reads as follows:

"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."

[Footnote 2/2]

Even in cases on direct appeal from a state court, when the decision below leaves unresolved questions of state law or procedure which bear on federal constitutional questions, we dismiss the appeal. Rescue Army v. Municipal Court,331 U. S. 549.

MR. JUSTICE BRENNAN, dissenting.

I dissent. The California regulation at issue here clearly applies to some speech protected by the First Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment, and also, no doubt, to some speech and conduct which are unprotected under our prior decisions. See Memoirs v. Massachusetts,383 U. S. 413 (1966); Roth v. United States,354 U. S. 476 (1957). The State points out, however, that the regulation does not prohibit speech directly, but speaks only to the conditions under which a license to sell liquor by the drink can be granted and retained. But, as MR. JUSTICE MARSHALL carefully demonstrates in Part II of his dissenting opinion, by requiring the owner of a nightclub to forgo the exercise of certain rights guaranteed by the First Amendment, the State has imposed an unconstitutional condition on the grant of a license. See Perry v. Sindermann,408 U. S. 593 (1972); Sherbert v. Verner,374 U. S. 398 (1963); Speiser v. Randall,357 U. S. 513 (1958). Nothing in the language or history of the Twenty-first Amendment authorizes the States to use their liquor licensing power as a means for the deliberate inhibition of protected, even if distasteful, forms of expression. For that reason, I would affirm the judgment of the District Court.


In my opinion, the District Court's judgment should be affirmed. The record in this case is not a pretty one, and it is possible that the State could constitutionally punish some of the activities described therein

Page 409 U. S. 124

under a narrowly drawn scheme. But appellees challenge these regulations [Footnote 3/1] on their face, rather than as applied to a specific course of conduct. [Footnote 3/2] Cf. 405 U. S. S. 125

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