The City Commission of Newport, Ky., enacted an ordinance
prohibiting nude or nearly nude dancing in local establishments
licensed to sell
Page 479 U. S. 93
liquor for consumption on the premises. Respondents, proprietors
of Newport liquor establishments that offered nude or nearly nude
entertainment, filed an action in Federal District Court contending
that the ordinance deprived them of their rights under the First
and Fourteenth Amendments. The court ruled that the ordinance was
constitutional under the doctrine of
New York State Liquor
Authority v. Bellanca, 452 U. S. 714,
which upheld a state law imposing an almost identical prohibition
on nude dancing as being within the State's broad power under the
Twenty-first Amendment to regulate the sale of liquor within its
boundaries. The Court of Appeals reversed.
Held: The ordinance is constitutional. This case is controlled
by
Bellanca. The States' broad regulatory authority
conferred by the Twenty-first Amendment in the context of liquor
licensing includes the power to ban nude dancing and outweighs any
First Amendment interest in nude dancing. The Court of Appeals
misperceived this broad base for the
Bellanca decision by
concluding that because, under the Kentucky Constitution, a city
cannot ban the sale of alcohol without approval by local election,
it similarly cannot regulate nude dancing in bars. Generally,
States may delegate their power under the Twenty-first Amendment as
they see fit, and the fact that Kentucky has delegated one portion
of its power to the electorate -- the power to decide if liquor may
be served in local establishments -- does not differentiate this
case from
Bellanca.
Certiorari granted; 786 F.2d 1364, reversed and remanded.
PER CURIAM.
In 1982, the City Commission of Newport, Ky., enacted Ordinance
No. 0-82-85. This ordinance prohibited nude or nearly nude dancing
in local establishments licensed to sell liquor for consumption on
the premises. [
Footnote 1] A
state law imposing an almost identical prohibition on nude dancing
was upheld by this Court in
New York State Liquor Authority v.
Bellanca, 452 U. S. 714
(1981) (per curiam), as being within the State's broad power under
the Twenty-first Amendment [
Footnote 2] to regulate the sale of liquor within its
boundaries.
Respondents, proprietors of Newport liquor establishments that
offered nude or nearly nude entertainment, challenged the ordinance
in federal court. They contended that the ordinance deprived them
of their rights under the First and Fourteenth Amendments, and they
sought declaratory and injunctive relief under 42 U.S.C. §1983
against its enforcement. [
Footnote
3] The District Court ruled that the ordinance was
constitutional, stating that it "is squarely within the
doctrine
Page 479 U. S. 94
of
Bellanca . . . and must be upheld on that basis."
App. to Pet. for Cert. 50a.
A divided panel of the United States Court of Appeals for the
Sixth Circuit reversed that judgment. 785 F.2d 1354 (1986). It
found the decision in
Bellanca inapplicable because, in
Kentucky, local voters, rather than the city or the Commonwealth,
determine whether alcohol may be sold. Pursuant to the authority
granted by the Commonwealth's Constitution, [
Footnote 4] Kentucky expressly authorizes a city
to conduct a popular election on a question of local prohibition
when a specified proportion of qualified voters petition for such
an election.
See Ky. Rev. Stat. §§242.010-242.990 (1981
and Supp. 1986). Noting this Court's statement in
Bellanca
that
"[t]he 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,"
452 U.S. at
452 U. S. 717,
the Court of Appeals' majority nevertheless concluded that the
ordinance could not be justified under the broad authority bestowed
by the Twenty-first Amendment. It stated that this case does not
fall within the
Bellanca "doctrine" or "rationale" because
the city "cannot exercise in part a power it does not hold in
full." 785 F.2d at 1358. The court remanded the case for a
determination, among other things, of the city's authority to enact
the ordinance under its police power. The dissenting judge argued
that the majority read
Bellanca too narrowly, and he
contended that the city is not restricted solely to the exercise of
the police power to regulate the liquor industry.
We agree with the dissent's conclusion that this case is
controlled by
Bellanca, and we therefore reverse. The
reach of
Page 479 U. S. 95
the Twenty-first Amendment is certainly not without limit,
[
Footnote 5] but previous
decisions of this Court have established that, in the context of
liquor licensing, the Amendment confers broad regulatory powers on
the States.
"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."
California v. LaRue, 409 U. S. 109,
409 U. S. 114
(1972). This regulatory authority includes the power to ban nude
dancing as part of a liquor license control program.
"In
LaRue, . . . we concluded that the broad powers of
the States to regulate the sale of liquor, conferred by the
Twenty-first Amendment, outweighed any First Amendment interest in
nude dancing, and that a State could therefore ban such dancing as
a part of its liquor license program."
Doran v. Salem Inn, Inc., 422 U.
S. 922,
422 U. S.
932-933 (1975). In
Bellanca, the Court upheld a
state statute imposing just such a ban.
The Court of Appeals misperceived this broad base for the ruling
in
Bellanca and seized upon a single sentence,
characterizing it as the "doctrine" or "rationale" of
Bellanca. Because a Kentucky city cannot ban the sale of
alcohol without election approval, the court concluded that it
similarly cannot
Page 479 U. S. 96
regulate nude dancing in bars. In holding that a State "has
broad power . . . to regulate the times, places, and circumstances
under which liquor may be sold,"
Bellanca, 452 U.S. at
452 U. S. 715,
this Court has never attached any constitutional significance to a
State's division of its authority over alcohol. The Twenty-first
Amendment has given broad power to the States, and generally they
may delegate this power as they see fit. [
Footnote 6]
There is certainly no constitutional requirement that the same
governmental unit must grant liquor licenses, revoke licenses, and
regulate the circumstances under which liquor may be sold. Indeed,
while Kentucky provides that the question of local prohibition is
to be decided by popular election, the parties are in agreement
that the city is vested with the power to revoke a liquor license
upon a finding of a violation of state law, a state liquor
regulation, or a city ordinance.
See Brief in Opposition
7. Yet the rationale of the opinion of the Court of Appeals implies
that, because of the Kentucky Constitution, neither the State nor
the city may revoke a liquor license under the authority of the
Twenty-first Amendment. Only a strained reading of
Bellanca would require each licensing decision to be made
by plebiscite. Moreover, there is no statutory provision that gives
the voters direct authority, once the sale of alcohol is permitted,
to determine the manner of regulation. Thus, if respondents were to
prevail in their argument that only voters can ban nudity because
only voters have the authority to ban the sale of alcohol, it is
possible that nude dancing in bars would be immune from any
regulation.
The Newport City Commission, in the preamble to the ordinance,
determined that nude dancing in establishments serving liquor was
"injurious to the citizens" of the city. It found the ordinance
necessary to a range of purposes, including "prevent[ing] blight
and the deterioration of the City's neighborhoods"
Page 479 U. S. 97
and "decreas[ing] the incidence of crime, disorderly conduct and
juvenile delinquency."
See 785 F.2d at 1360. "Given the
added presumption in favor of the validity of the . . . regulation
in this area that the Twenty-first Amendment requires,"
California v. LaRue, 409 U.S. at
409 U. S.
118-119, it is plain that, as in
Bellanca, the
interest in maintaining order outweighs the interest in free
expression by dancing nude. The fact that the Commonwealth of
Kentucky has delegated one portion of its power under the
Twenty-first Amendment to the electorate -- the power to decide if
liquor may be served in local establishments -- does not
differentiate this case from
Bellanca.
The petition for certiorari is granted, the judgment of the
Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA would grant the petition for a writ of certiorari
and set the case for oral argument.
JUSTICE MARSHALL dissents from this summary disposition, which
has been ordered without affording the parties prior notice or an
opportunity to file briefs on the merits.
See, e.g., Acosta v.
Louisiana Dept. of Health and Human Resources, 478 U.
S. 251 (1986) (MARSHALL, J., dissenting).
[
Footnote 1]
New.port Ordinance No. 0-82-85, § II, provides:
"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 portion of the breast referred to as the areola, nipple, or
simulation thereof."
Sections IV and V specify criminal and civil penalties for any
violation of the ordinance. A proprietor who knowingly permits the
proscribed activity on his premises may have his occupational
license and liquor license revoked.
Ordinance No. 0-82-85 is set forth in its entirety in the
appendix to the Court of Appeals' opinion.
See 785 F.2d
1354, 1360-1362 (CA6 1986).
[
Footnote 2]
The Twenty-first Amendment provides in relevant part:
"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 3]
Respondents also challenged a second Newport ordinance,
see 785 F.2d at 1362-1363, requiring employees of
establishments that sell liquor by the drink to register with the
Police Department and be fingerprinted. The Court of Appeals upheld
the constitutionality of this second ordinance as a valid
implementation of the city's police power.
Id. at
1355-1358. That ordinance is not at issue here.
[
Footnote 4]
The Kentucky Constitution, § 61, provides:
"The General Assembly shall, by general law, provide a means
whereby the sense of the people of any county, city, town, district
or precinct may be taken, as to whether or not spirituous, vinous
or malt liquors shall be sold, bartered or loaned therein, or the
sale thereof regulated. But nothing herein shall be construed to
interfere with or to repeal any law in force relating to the sale
or gift of such liquors. All elections on this question may be held
on a day other than the regular election days."
[
Footnote 5]
See, e.g., California v. LaRue, 409 U.
S. 109,
409 U. S. 120,
n. (1972) (Stewart, J., concurring):
"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 Bon Voyage Liquor Corp., 377 U. S.
324,
377 U. S. 329-334;
Dept.
of Revenue v. James Beam Co., 377 U. S.
341."
[
Footnote 6]
Because it found
Bellanca inapplicable, the Court of
Appeals did not reach the state law question of delegation of
authority by the Commonwealth to the city of Newport. We express no
opinion on this issue.
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins,
dissenting.
As I have previously written, the reasoning in the per curiam
summary disposition in
New York State Liquor Authority v.
Bellanca, 452 U. S. 714
(1981), is "blatantly incorrect."
Id. at
452 U. S. 725
(STEVENS, J., dissenting). Neither the plain language nor a fair
construction of the purpose of the Twenty-first Amendment lends any
support to the Court's holding that the Twenty-first Amendment
shields restrictions on speech from full First Amendment review.
Without repeating what I said in that opinion, I believe it
important
Page 479 U. S. 98
to highlight some of the fundamental defects in the Court's
analysis.
At one time, not long ago, it was considered elementary that the
Twenty-first Amendment merely created an exception to the normal
operation of the Commerce Clause.
See Craig v. Boren,
429 U. S. 190,
429 U. S. 206
(1976). As the Court explained shortly after the Amendment's
passage, the Amendment "sanctions the right of a State to legislate
concerning intoxicating liquors brought from without, unfettered by
the Commerce Clause."
Ziffrin, Inc. v. Reeves,
308 U. S. 132,
308 U. S. 138
(1939);
see also State Board of Equalization v. Young's Market
Co., 299 U. S. 59
(1936).
In
Craig, the Court flatly rejected the Twenty-first
Amendment as a basis for sustaining a state liquor regulation that
otherwise violated the Equal Protection Clause. The Court pointed
out that,
"[a]s one commentator has remarked:"
"Neither the text nor the history of the Twenty-first Amendment
suggests that it qualifies individual rights protected by the Bill
of Rights and the Fourteenth Amendment where the sale or use of
liquor is concerned."
429 U.S. at 206 (quoting P. Brest, Processes of Constitutional
Decisionmaking, Cases and Materials 258 (1975));
see also
Larkin v. Grendel's Den, Inc., 459 U.
S. 116,
459 U. S. 122,
n. 5 (1982);
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S.
178-179 (1972);
Wisconsin v. Constantineau,
400 U. S. 433,
400 U. S. 436
(1971).
In recent years, however, the Court has completely distorted the
Twenty-first Amendment. It now has a barely discernible effect in
Commerce Clause cases,
see, e.g., Brown-Forman Distillers Corp.
v. New York State Liquor Authority, 476 U.
S. 573 (1986);
Bacchus Imports, Ltd. v. Dias,
468 U. S. 263,
468 U. S. 279
(1984), but, under
Bellanca and the Court's decision
today, it may be dispositive in First Amendment cases. This paradox
cannot be overstated: reading
Bellanca, one would have
thought that the Court was prepared to recognize some bite in the
Twenty-first Amendment. The intervening decisions in
Brown-Forman and
Bacchus
Page 479 U. S. 99
demonstrate, however, that it is toothless except when freedom
of speech is involved. [
Footnote
2/1]
Were this internal inconsistency in interpreting the
Twenty-first Amendment the only problem with the Court's analysis,
that would still be enough to call these decisions into question.
But the problem is far more severe and dangerous than that. The
Court has a duty in this case to
"assess the substantiality of the governmental interests
asserted [and] determining whether those interests could be served
by means that would be less intrusive on activity protected by the
First Amendment."
Schad v. Mount Ephraim, 452 U. S.
61,
452 U. S. 70
(1981). Shirking this responsibility, the Court instead relies
exclusively on the Twenty-first Amendment to sustain a regulation
of speech that it assumes,
arguendo, would otherwise
violate the First Amendment. Through the use of a per curiam
summary disposition, the Court concludes that municipal ordinances
and state statutes regulating
Page 479 U. S. 100
expression in business establishments licensed to sell liquor
for consumption on the premises are equally immune from facial
challenges predicated on the First Amendment. [
Footnote 2/2] Unlike its holding in
California
v. LaRue, 409 U. S. 109
(1972), the Court also concludes that there is no need to consider
the substantiality of the evidence supporting the city's
justification for its ordinance; [
Footnote 2/3] the articulation of a legitimate
Page 479 U. S. 101
purpose in the preamble to the ordinance is sufficient. In the
words of a student commentator, "one must inquire why the Court
[chooses] to go to such extremes to avoid a first amendment
analysis." Recent Developments -- Constitutional Law, 19
Vill.L.Rev. 177, 185 (1973).
There are dimensions to this case that the Court's opinion
completely ignores. To begin with, the Newport ordinance is not
limited to nude dancing, "gross sexuality," or barrooms. [
Footnote 2/4] On the contrary, the
ordinance applies to every business establishment that requires a
liquor license, and, even then, its prohibition is not limited to
nudity or to dancing. [
Footnote
2/5] The State's power to regulate the sale of alcoholic
beverages extends to a host of business establishments other than
ordinary bars.
See Ky.Rev.Stat. § 243.020(3) (1981). For
example, a theater cannot sell champagne during an intermission
without a liquor license. It is surely strange to suggest that a
dramatic production like "Hair" would lose its First Amendment
protection because alcoholic beverages might be served
Page 479 U. S. 102
in the lobby during intermission. [
Footnote 2/6]
See California v. LaRue, 409 U.S.
at
409 U. S. 121
(Douglas, J., dissenting).
Perhaps the Court would disavow its rationale if a city sought
to apply its ordinance to the performers in a play like "Hair," or
to a production of "Romeo and Juliet" containing a scene that
violates Newport's ordinance.
See Southeastern Promotions, Ltd.
v. Conrad, 420 U. S. 546
(1975). But such a disavowal would, I submit, merely confirm my
view that the Twenty-first Amendment really has no bearing
whatsoever on the question whether the State's interest in
maintaining order in licensed premises outweighs the interest in
free expression that is protected by the First Amendment -- whether
that interest is asserted by a dancer, an actor, or merely an
unpopular customer. [
Footnote
2/7]
Similarly, I recognize that the Court's attention in this case
is focused on the specter of unregulated nudity, particularly
sexually suggestive dancing. But if there is any integrity to the
Court's reasoning on the State's power under the Twenty-first
Amendment, it must also embrace other forms of expressive conduct
or attire that might be offensive to the majority, or perhaps
likely to stimulate violent reactions, but would nevertheless
ordinarily be entitled to First Amendment
Page 479 U. S. 103
protection. [
Footnote 2/8] For
example, liquor cannot be sold in an athletic stadium, hotel,
restaurant, or sidewalk cafe without a liquor license. According to
the Court's rationale, any restriction on speech -- be it content
based or neutral -- in any of these places enjoys a presumption of
validity. It is a strange doctrine indeed that implies that Paul
Robert Cohen had a constitutional right to wear his vulgar jacket
in a courtroom, but could be sent to jail for wearing it in Yankee
Stadium.
See Cohen v. California, 403 U. S.
15 (1971).
Given these concerns, I cannot concur in yet another summary
disposition that gives such short shrift to these issues, without
even the benefit of briefing on the merits.
Bellanca
should not be applied, much less extended, [
Footnote 2/9] without taking cognizance of the
intervening decisions that have further limited the effect of the
Twenty-first Amendment in other areas. Moreover, I continue to
believe that the Court is quite wrong in proceeding as if the
Twenty-first Amendment repealed not only the Eighteenth Amendment
but some undefined portion of the First Amendment as well.
I respectfully dissent.
[
Footnote 2/1]
The Court fails to explain how its treatment of freedom of
speech in
New York State Liquor Authority v. Bellanca,
452 U. S. 714
(1981), and this case is consistent with its discussion of the
Twenty-first Amendment's lack of effect on the Bill of Rights in
Craig v. Boren, 429 U. S. 190
(1976). Nor does the Court mention that in a post-
Bellanca
decision it unequivocally rejected the notion that a State may
"exercise its power under the Twenty-first Amendment in a way which
impinges upon the Establishment Clause of the First Amendment."
Larkin v. Grendel's Den, Inc., 459 U.
S. 116,
459 U. S. 122,
n. 5 (1982). There was absolutely no discussion of any added
presumption of validity in
Larkin.
These vastly different effects that the Court has attributed to
the Twenty-first Amendment can surely not be explained as
reflecting a difference in the value that is placed on free speech,
from that which is placed on the Equal Protection Clause, or the
Establishment Clause. In
Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464
(1982), the Court firmly declared that there is no "principled
basis on which to create a hierarchy of constitutional values."
Id. at
454 U. S. 484.
In so stating, the Court declined to afford the Establishment
Clause any special respect. Yet today, the Court not only appears
to reject the proposition that all constitutional values are
equivalent, but actually concludes that some of the other values
protected by the First Amendment are at the low end of the sliding
scale.
[
Footnote 2/2]
Bellanca, of course, dealt with the Twenty-first
Amendment's effect on a state statute, not on a municipality's
ordinance. The distinction between States and their subparts is
dispositive in some areas of the law.
See, e. g., Community
Communications Co. v. Boulder, 455 U. S.
40,
455 U. S. 48-52
(1982) (antitrust immunity for "state action");
Illinois v.
City of Milwaukee, 406 U. S. 91,
406 U. S. 93-98
(1972) (Supreme Court's original jurisdiction);
Lincoln County
v. Luning, 133 U. S. 529
(1890) (Eleventh Amendment). Of course, in some other areas, a
municipality is equated with the State.
See, e.g., Waller v.
Florida, 397 U. S. 387
(1970) (double jeopardy);
Avery v. Midland County,
390 U. S. 474,
390 U. S. 480
(1968) (Fourteenth Amendment).
These cases demonstrate that the "particular factual and legal
context is all-important" in determining whether the
state-municipality distinction is relevant.
Lafayette v.
Louisiana Power & Light Co., 435 U.
S. 389,
435 U. S. 430,
n. 7 (1978) (Stewart, J., dissenting). Today, however, for the
first time in the Twenty-first Amendment's history, the Court holds
that it applies equally to municipalities. Until now, the Court had
twice been faced with cases involving delegation of a State's
Twenty-first Amendment authority, and it reserved passing on the
delegation question in both cases.
See Grendel's Den, 459
U.S. at
459 U. S. 122;
Doran v. Salem Inn, Inc., 422 U.
S. 922,
422 U. S. 933
(1975). I certainly would have thought that this question merits
some analysis, even if it does not, in the Court's view, merit more
than a per curiam summary reversal.
[
Footnote 2/3]
In
LaRue, California's Department of Alcoholic Beverage
Control had held hearings on the problems that had become
associated with nude dancing. Witnesses included representatives of
law enforcement agencies, counsel, and owners of licensed premises,
and Department investigators. 409 U.S. at
409 U. S. 111.
The evidence demonstrated that a wide range of illegal conduct,
including juvenile prostitution, indecent exposure to young girls,
rapes, and assault on police officers, was taking place in and
around the nude dancing establishments.
Ibid. The Court's
decision to uphold the regulation was thus grounded in "the
evidence from the hearings that [the Department] cited to the
District Court."
Id. at
409 U. S. 115.
See also Schad v. Mount Ephraim, 452 U. S.
61,
452 U. S. 69-73
(1981) (refusing to uphold infringement of First Amendment rights
where the State did not present actual evidence to support its
purported justifications for the statute). This case stands in
striking contrast; the Court of Appeals stated that "no substantive
evidence concerning the government's justifications for the
ordinance was presented" to the District Court. 785 F.2d 1354, 1359
(1986).
[
Footnote 2/4]
This is not to say that an ordinance limited to barrooms would
necessarily be valid. As I suggested in
Bellanca, 452 U.S.
at
452 U. S. 723,
n. 10, a barroom might be the most appropriate forum for this type
of entertainment, since the patrons of such establishments
generally know what to expect when they enter and they are free to
leave if they disapprove of what they see or hear.
Cf. Splaum
v. California, 431 U. S. 595,
431 U. S. 604
(1977) (STEVENS, J., dissenting) (bookstore's advertisement that it
sold sexually provocative material put uninterested passersby on
notice). This case is wholly unlike those in which we have
recognized the legitimate interest in keeping pigs out of the
parlor.
Cf. FCC v. Pacifica Foundation, 438 U.
S. 726,
438 U. S. 750
(1978). As long as people who like pigs keep them in secluded
barnyards, they do not offend the sensibilities of the general
public.
[
Footnote 2/5]
The ordinance makes it a crime for any female to appear on a
licensed business establishment's premises "in such manner or
attire as to expose to view portion of the breast referred to as
the areola, nipple, or simulation thereof."
[
Footnote 2/6]
It is of no consolation that the bar owner can retain nude
dancing as long as he forgoes his liquor license, or that a theater
may run a production with some nudity as long as it does the same.
See California v. LaRue, 409 U.S. at
409 U. S.
136-137 (MARSHALL, J., dissenting). Even 23 years ago,
it was "too late in the day to doubt that the liberties of religion
and expression may be infringed by the denial of or placing of
conditions upon a benefit or privilege."
Sherbert v.
Verner, 374 U. S. 398,
374 U. S. 404
(1963);
see generally Van Alstyne, The Demise of the
Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev.
1439 (1968).
[
Footnote 2/7]
One of the anomalies of the Court's approach is that Newport's
ordinance would presumably be subject to vastly different scrutiny
were a bar owner to sell only liquor that is produced within the
State. Since the Twenty-first Amendment deals only with a State's
power to regulate "transportation or importation into" the State,
it would have no effect on a Kentucky bar selling Kentucky bourbon.
In such a case, the full force of the First Amendment would
apply.
[
Footnote 2/8]
Notwithstanding the Court's broad pronouncements on the
omnipotence of the Twenty-first Amendment, I would hope that it
would still
"be most difficult to sustain a law prohibiting political
discussions in places where alcohol is sold by the drink, even
though the record may show, conclusively, that political
discussions in bars often lead to disorderly behavior, assaults and
even homicide."
Bellanca v. New York State Liquor Authority, 50 N.Y.2d
524, 531, n. 7, 407, N.E.2d 460, 464, n. 7 (1980).
[
Footnote 2/9]
See n 2,
supra.