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."
Still
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
Reversed.
[
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."
Ibid.
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.
MR. JUSTICE MARSHALL, dissenting.
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� v. Wilson,
405 U.
S. 518 (1972). When so viewed, I think it clear that the
regulations are overbroad, and therefore unconstitutional.
See, e.g., Dombrowski v. Pfister,
380 U.
S. 479, 380 U. S. 486
(1965). [Footnote 3/3] Although the
State's broad power to regulate the distribution of liquor and to
enforce health and safety regulations is not to be doubted, that
power may not be exercised in a manner that broadly stifles First
Amendment freedoms. Cf. Shelton v. Tucker,
364 U.
S. 479, 364 U. S. 488
(1960). Rather, as this Court has made clear, "[p]recision of
regulation
Page 409 U. S.
126
must be the touchstone" when First Amendment rights are
implicated. NAACP v. Button,@
371 U.
S. 415,
371 U. S. 438
(1963). Because I am convinced that these regulations lack the
precision which our prior cases require, I must respectfully
dissent.
I
It should be clear at the outset that California's regulatory
scheme does not conform to the standards which we have previously
enunciated for the control of obscenity. [
Footnote 3/4] Before this Court's decision in
Roth
v. Unite States, 354 U. S. 476
(1957), some American courts followed the rule of
Regina v.
Hicklin, L.R. 3 Q.B. 360 (1868), to the effect that the
obscenity
vel non of a piece of work could be judged by
examining isolated aspects of it.
See, e.g., United States v.
Kennerley, 209 F. 119 (1913);
Commonwealth v.
Buckley, 200 Mass. 346, 86 N.E. 910 (1909). But in
Roth, we held that
"[t]he
Hicklin test, judging obscenity by the effect of
isolated passages upon the most susceptible persons, might well
encompass material legitimately treating with sex, and so it must
be rejected as unconstitutionally restrictive of the freedoms of
speech and press."
354 U.S. at
354 U. S. 489.
Instead, we held that the material must
Page 409 U. S. 127
be "taken as a whole,"
ibid., and, when so viewed, must
appeal to a prurient interest in sex, patently offend community
standards relating to the depiction of sexual matters, and be
utterly without redeeming social value. [
Footnote 3/5]
See Memoirs v. Massachusetts,
383 U. S. 413,
383 U. S. 418
(1966).
Obviously, the California rules do not conform to these
standards. They do not require the material to be judged as a
whole, and do not speak to the necessity of proving prurient
interest, offensiveness to community standards, or lack of
redeeming social value. Instead of the contextual test approved in
Roth and
Memoirs, these regulations create a
system of
per se rules to be applied regardless of
context: certain acts simply may not be depicted and certain parts
of the body may under no circumstances be revealed. The regulations
thus treat on the same level a serious movie such as "Ulysses" and
a crudely made "stag film." They ban not only obviously
pornographic photographs, but also great sculpture from antiquity.
[
Footnote 3/6]
Page 409 U. S. 128
Roth held 15 years ago that the suppression of serious
communication was too high a price to pay in order to vindicate the
State's interest in controlling obscenity, and I see no reason to
modify that judgment today. Indeed, even the appellants do not
seriously contend that these regulations can be justified under the
Roth-Memoirs test. Instead, appellants argue that
California's regulations do not concern the control of pornography
at all. These rules, they argue, deal with conduct, rather than
with speech, and, as such, are not subject to the strict
limitations of the First Amendment.
To support this proposition, appellants rely primarily on
United States v. O'Brien, 391 U.
S. 367 (1968), which upheld the constitutionality of
legislation punishing the destruction or mutilation of Selective
Service certificates.
O'Brien rejected the notion that
"an apparently limitless variety of conduct can be labeled
'speech' whenever the person engaging in the conduct intends
thereby to express an idea,"
and held that Government regulation of speech-related conduct is
permissible
"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
391 U. S. 376,
391 U. S.
377.
Page 409 U. S. 129
While I do not quarrel with these principles as stated in the
abstract, their application in this case stretches them beyond the
breaking point. [
Footnote 3/7] In
O'Brien, the Court began its discussion by noting that the
statute in question "plainly does not abridge free speech on its
face." Indeed, even O'Brien himself conceded that, facially, the
statute dealt "with conduct having no connection with speech."
[
Footnote 3/8]
Id. at
391 U. S. 375.
Here, the situation is quite different. A long line of our cases
makes clear that motion pictures, unlike draft card burning, are a
form of expression entitled to
prima facie First Amendment
protection.
"It cannot be doubted that motion pictures are a significant
medium for the communication of ideas. They may affect public
attitudes and behavior in a variety of ways, ranging from direct
espousal of a political or social doctrine to the subtle shaping of
thought which characterizes all artistic expression. The importance
of motion pictures as an organ of public opinion is not lessened by
the fact that they are designed to entertain as well as to
inform."
Joseph Burstyn, Inc. v. Wilson, 343 U.
S. 495,
343 U. S. 501
(1952) (footnote omitted).
See also Interstate Circuit, Inc. v.
City of Dallas, 390 U. S. 676
(1968);
Jacobellis v.
Ohio, 378 U.S.
Page 409 U. S. 130
184 (1964);
Pinkus v. Pitchess, 429 F.2d 416 (CA9
1970),
aff'd by equally divided court sub nom. California v.
Pinkus, 400 U.S. 922 (1970). Similarly, live performances and
dance have, in recent years, been afforded broad
prima
facie First Amendment protection.
See, e.g., Schacht v.
United States, 398 U. S. 58
(1970);
P.B.I.C., Inc. v. Byrne, 313 F.
Supp. 757 (Mass. 1970),
vacated to consider mootness,
401 U.S. 987 (1971);
In re Giannini, 69 Cal. 2d
563, 446 P.2d 535 (1968),
cert. denied sub nom. California
v. Giannini, 395 U.S. 910 (1969).
If, as these many cases hold, movies, plays, and the dance enjoy
constitutional protection, it follows, ineluctably, I think, that
their component parts are protected as well. It is senseless to say
that a play is "speech" within the meaning of the First Amendment,
but that the individual gestures of the actors are "conduct" which
the State may prohibit. The State may no more allow movies while
punishing the "acts" of which they are composed than it may allow
newspapers while punishing the "conduct" of setting type.
Of course, I do not mean to suggest that anything which occurs
upon a stage is automatically immune from state regulation. No one
seriously contends, for example, that an actual murder may be
legally committed so long as it is called for in the script, or
that an actor may inject real heroin into his veins while evading
the drug laws that apply to everyone else. But once it is
recognized that movies and plays enjoy
prima facie First
Amendment protection, the standard for reviewing state regulation
of their component parts shifts dramatically. For while
"[m]ere legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other
personal activities, [they are] insufficient to justify such as
diminishes the exercise of rights so vital"
as freedom
Page 409 U. S. 131
of speech.
Schneider v. State, 308 U.
S. 147,
308 U. S. 161
(1939). Rather, in order to restrict speech, the State must show
that the speech is
"used in such circumstances and [is] of such a nature as to
create a clear and present danger that [it] will bring about the
substantive evils that [the State] has a right to prevent."
Schenck v. United States, 249 U. S.
47,
249 U. S. 52
(1919).
Cf. Brandenburg v. Ohio, 395 U.
S. 444 (1969);
Dennis v. United States,
341 U. S. 494
(1951). [
Footnote 3/9]
When the California regulations are measured against this
stringent standard, they prove woefully inadequate. Appellants
defend the rules as necessary to prevent sex crimes, drug abuse,
prostitution, and a wide variety of other evils. These are
precisely the same interests that have been asserted time and again
before this Court as justification for laws banning frank
discussion of sex, and that we have consistently rejected. In fact,
the empirical link between sex-related entertainment and the
criminal activity popularly associated with it has never been
proved and, indeed, has now been largely discredited.
See,
e.g., Report of the Commission on Obscenity and Pornography 27
(1970); Cairns, Paul, & Wishner, Sex Censorship: The
Assumptions of Anti-Obscenity Laws and the Empirical Evidence, 46
Minn.L.Rev. 1009 (1962). Yet even if one were to concede that such
a link existed, it would hardly justify a broad-scale attack on
First Amendment freedoms. The only way to stop murders and drug
abuse is to punish them directly. But the State's interest in
controlling material
Page 409 U. S. 132
dealing with sex is secondary in nature. [
Footnote 3/10] It can control rape and prostitution by
punishing those acts, rather than by punishing the speech that is
one step removed from the feared harm. [
Footnote 3/11] Moreover, because First Amendment rights
are at stake, the State must adopt this "less restrictive
alternative" unless it can make a compelling demonstration that the
protected activity and criminal conduct are so closely linked that
only through regulation of one can the other be stopped.
Cf.
United States v. Robel, 389 U. S. 258,
389 U. S. 268
(1967). As we said in
Stanley v. Georgia, 394 U.
S. 557,
394 U. S.
566-567 (1969),
"if the State is only concerned about printed or filmed
materials inducing antisocial conduct, we believe that, in the
context of private consumption of ideas and information, we should
adhere to the view that '[a]mong free men, the deterrents
ordinarily to be applied to prevent
Page 409 U. S. 133
crime are education and punishment for violations of the law. .
. .'
Whitney v. California, 274 U. S.
357,
274 U. S. 378
(1927)(Brandeis, J., concurring). . . . Given the present state of
knowledge, the State may no more prohibit mere possession of
obscene matter on the ground that it may lead to antisocial conduct
than it may prohibit possession of chemistry books on the ground
that they may lead to the manufacture of homemade spirits.
[
Footnote 3/12]"
II
It should thus be evident that, under the standards previously
developed by this Court, the California regulations are overbroad:
they would seem to suppress not only obscenity outside the scope of
the First Amendment, but also speech that is clearly protected. But
California contends that these regulations do not involve
suppression at all. The State claims that its rules are not
regulations of obscenity, but are rather merely regulations of the
sale and consumption of liquor. Appellants point out that
California does not punish establishments which provide the
proscribed entertainment, but only requires that they not serve
alcoholic beverages on their premises. Appellants vigorously argue
that such regulation falls within the State's general police power
as augmented, when alcoholic beverages are involved, by the
Twenty-first Amendment. [
Footnote
3/13]
Page 409 U. S. 134
I must confess that I find this argument difficult to grasp. To
some extent, it seems premised on the notion that the Twenty-first
Amendment authorizes the States to regulate liquor in a fashion
which would otherwise be constitutionally impermissible. But the
Amendment, by its terms, speaks only to state control of the
importation of alcohol, and its legislative history makes clear
that it was intended only to permit "dry" States to control the
flow of liquor across their boundaries despite potential Commerce
Clause objections. [
Footnote
3/14]
See generally Seagram & Sons v. Hostetter,
384 U. S. 35
(1966);
Hostetter v. Idlewild Liquor Corp., 377 U.
S. 324 (1964). There is not a word in that history which
indicates that Congress meant to tamper in any way with First
Amendment rights. I submit that the framers of the Amendment would
be astonished to
Page 409 U. S. 135
discover that they had inadvertently enacted a
pro
tanto repealer of the rest of the Constitution. Only last
Term, we held that the State's conceded power to license the
distribution of intoxicating beverages did not justify use of that
power in a manner that conflicted with the Equal Protection Clause.
See Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S.
178-179 (1972).
Cf. Wisconsin v. Constantineau,
400 U. S. 433
(1971);
Hornsby v. Allen, 326 F.2d 605 (CA5 1964). I am at
a loss to understand why the Twenty-first Amendment should be
thought to override the First Amendment, but not the
Fourteenth.
To be sure, state regulation of liquor is important, and it is
deeply embedded in our history.
See, e.g., Colonnade Catering
Corp. v. United States, 397 U. S. 72;
397 U. S. 77
(1970). But First Amendment values are important as well. Indeed,
in the past, they have been thought so important as to provide an
independent restraint on every power of Government. "Freedom of
press, freedom of speech, freedom of religion are in a preferred
position."
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 115
(1943). Thus, when the Government attempted to justify a limitation
on freedom of association by reference to the war power, we
categorically rejected the attempt. "[The] concept of
national
defense,'" we held,
"cannot be deemed an end in itself, justifying any exercise of
legislative power designed to promote such a goal. Implicit in the
term 'national defense' is the notion of defending those values and
ideals which set this Nation apart. For almost two centuries, our
country has taken singular pride in the democratic ideals enshrined
in its Constitution, and the most cherished of those ideals have
found expression in the First Amendment. It would indeed be ironic
if, in the name of national defense, we would sanction the
subversion of one of those liberties -- the freedom of association
-- which
Page 409 U. S. 136
makes the defense of the Nation worthwhile."
United States v. Robel, 389 U.S. at
389 U. S. 264.
Cf. New York Times Co. v. United States, 403 U.
S. 713,
403 U. S.
716-717 (1971)(Black, J., concurring);
Home Bldg.
& Loan Assn. v. Blaisdell, 290 U.
S. 398,
290 U. S. 426
(1934). If the First Amendment limits the means by which our
Government can ensure its very survival, then surely it must limit
the State's power to control the sale of alcoholic beverages as
well.
Of course, this analysis is relevant only to the extent that
California has, in fact, encroached upon First Amendment rights.
Appellants argue that no such encroachment has occurred, since
appellees are free to continue providing any entertainment they
choose without fear of criminal penalty. Appellants suggest that
this case is somehow different because all that is at stake is the
"privilege" of serving liquor by the drink.
It should be clear, however, that the absence of criminal
sanctions is insufficient to immunize state regulation from
constitutional attack. On the contrary, "this is only the
beginning, not the end, of our inquiry."
Sherbert v.
Verner, 374 U. S. 398,
374 U. S.
403-404 (1963). For
"[i]t is 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."
Id. at
374 U. S. 404.
As we pointed out only last Term,
"[f]or at least a quarter-century, this Court has made clear
that even though a person has no 'right' to a valuable governmental
benefit, and even though the government may deny him the benefit
for any number of reasons, there are some reasons upon which the
government may not rely. It may not deny a benefit to a person on a
basis that infringes his constitutionally protected interests --
especially his interest in freedom of speech. For if the government
could deny a benefit to a person because of his constitutionally
protected
Page 409 U. S. 137
speech or associations, his exercise of those freedoms would, in
effect, be penalized and inhibited."
Perry v. Sindermann, 408 U. S. 593,
408 U. S. 597
(1972).
Thus, unconstitutional conditions on welfare benefits, [
Footnote 3/15] unemployment compensation,
[
Footnote 3/16] tax exemptions,
[
Footnote 3/17] public
employment, [
Footnote 3/18] bar
admissions, [
Footnote 3/19] and
mailing privileges [
Footnote
3/20] have all been invalidated by this Court. In none of these
cases were criminal penalties involved. In all of them, citizens
were left free to exercise their constitutional rights so long as
they were willing to give up a "gratuity" that the State had no
obligation to provide. Yet, in all of them, we found that the
discriminatory provision of a privilege placed too great a burden
on constitutional freedoms. I therefore have some difficulty in
understanding why California nightclub proprietors should be
singled out and informed that they alone must sacrifice their
constitutional rights before gaining the "privilege" to serve
liquor.
Of course, it is true that the State may, in proper
circumstances, enact a broad regulatory scheme that incidentally
restricts First Amendment rights. For example, if California
prohibited the sale of alcohol altogether, I do not mean to suggest
that the proprietors
Page 409 U. S. 138
of theaters and bookstores would be constitutionally entitled to
a special dispensation. But, in that event, the classification
would not be speech-related, and hence could not be rationally
perceived as penalizing speech. Classifications that discriminate
against the exercise of constitutional rights
per se stand
on an altogether different footing. They must be supported by a
"compelling" governmental purpose, and must be carefully examined
to insure that the purpose is unrelated to mere hostility to the
right being asserted.
See, e.g., Shapiro v. Thompson,
394 U. S. 618,
394 U. S. 634
(1969).
Moreover, not only is this classification speech related; it
also discriminates between otherwise indistinguishable parties on
the basis of the content of their speech. Thus, California
nightclub owners may present live shows and movies dealing with a
wide variety of topics while maintaining their licenses. But if
they choose to deal with sex, they are treated quite differently.
Classifications based on the content of speech have long been
disfavored, and must be viewed with the gravest suspicion.
See,
e.g., Cox v. Louisiana, 379 U. S. 536,
379 U. S.
556-558 (1965). Whether this test is thought to derive
from equal protection analysis,
see Police Department of
Chicago v. Mosley, 408 U. S. 92
(1972);
Niemotko v. Maryland, 340 U.
S. 268 (1951), or directly from the substantive
constitutional provision involved,
see Cox v. Louisiana, supra;
Schneider v. State, 308 U. S. 147
(1939), the result is the same: any law that has "no other purpose
. . . than to chill the assertion of constitutional rights by
penalizing those who choose to exercise them . . . [is] patently
unconstitutional."
United States v. Jackson, 390 U.
S. 570,
390 U. S. 581
(1968).
As argued above, the constitutionally permissible purposes
asserted to justify these regulations are too remote to satisfy the
Government's burden when First Amendment rights are at stake.
See supra at
409 U. S.
131-133.
Page 409 U. S. 139
It may be that the Government has an interest in suppressing
lewd or "indecent" speech even when it occurs in private among
consenting adults.
Cf. United States v. Thirty-Seven
Photographs, 402 U. S. 363,
402 U. S. 376
(1971).
But cf. Stanley v. Georgia, 394 U.
S. 557 (1969). That interest, however, must be balanced
against the overriding interest of our citizens in freedom of
thought and expression. Our prior decisions on obscenity set such a
balance, and hold that the Government may suppress expression
treating with sex only if it meets the three-pronged
Roth-Memoirs test. We have said that
"[t]he door barring federal and state intrusion into this area
cannot be left ajar; it must be kept tightly closed, and opened
only the slightest crack necessary to prevent encroachment upon
more important interests."
Roth v. United States, 354 U.S. at
354 U. S. 488.
Because I can see no reason why we should depart from that standard
in this case, I must respectfully dissent.
[
Footnote 3/1]
Rule 143.3(1) provides in relevant part:
"No licensee shall permit any person to perform acts of or acts
which simulate: "
"(a) Sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation or any sexual acts which are prohibited by
law."
"(b) The touching, caressing or fondling on the breast,
buttocks, anus or genitals."
"(c) The displaying of the pubic hair, anus, vulva or
genitals."
Rule 143.4 prohibits:
"The showing of film, still pictures, electronic reproduction,
or other visual reproductions depicting: "
"(1) Acts or simulated acts of sexual intercourse, masturbation,
sodomy, bestiality, oral copulation, flagellation or any sexual
acts which are prohibited by law."
"(2) Any person being touched, caressed or fondled on the
breast, buttocks, anus or genitals."
"(3) Scenes wherein a person displays the vulva or the anus or
the genitals."
"(4) Scenes wherein artificial devices or inanimate objects are
employed to depict, or drawings are employed to portray, any of the
prohibited activities described above."
[
Footnote 3/2]
This is not an appropriate case for application of the
abstention doctrine. Since these regulations are challenged on
their face for overbreadth, no purpose would be served by awaiting
a state court construction of them unless the principles announced
in
Younger v. Harris, 401 U. S. 37
(1971), govern.
See Zwickler v. Koota, 389 U.
S. 241,
389 U. S.
248-250 (1967). Thus far, however, we have limited the
applicability of
Younger to cases where the plaintiff has
an adequate remedy in a pending criminal prosecution.
See
Younger v. Harris, supra, at
401 U. S. 43-44.
Cf. Douglas v. City of Jeannette, 319 U.
S. 157 (1943).
But cf. Berryhill v.
Gibson, 331 F.
Supp. 122, 124 (MD Ala. 1971),
probable jurisdiction
noted, 408 U.S. 920 (1972). The California licensing
provisions are, of course, civil in nature.
Cf. Hearn v.
Short, 327 F. Supp.
33 (SD Tex. 1971 ). Moreover, the
Younger doctrine has
been held to "have little force in the absence of a
pending state proceeding."
Lake Carriers' Assn. v.
MacMullan, 406 U. S. 498,
406 U. S. 509
(1972)(emphasis added). There are at present no proceedings of any
kind pending against these appellees. Finally, since the
Younger doctrine rests heavily on federal deference to
state administration of its own statutes,
see Younger v.
Harris, supra, at
401 U. S. 44-45,
it is waivable by the State.
Cf. Hostetter v. Idlewild Liquor
Corp., 377 U. S. 324,
377 U. S. 329
(1964). Appellants have nowhere mentioned the
Younger
doctrine in their brief before this Court, and, when the case was
brought to the attention of the attorney for the appellants during
oral argument, he expressly eschewed reliance on it. In the court
below, appellants specifically asked for a federal decision on the
validity of California's regulations and stated that they did not
think the court should abstain.
See 326 F.
Supp. 348, 351 (CD Cal. 1971).
[
Footnote 3/3]
I am startled by the majority's suggestion that the regulations
are constitutional on their face even though "specific future
applications of [the statute] may engender concrete problems of
constitutional dimension." (Quoting with approval
Seagram &
Sons v. Hostetter, 384 U. S. 35, 52
(1966).
Ante at
409 U. S. 119
n. 5.) Ever since
Thornhill v. Alabama, 310 U. S.
88 (1940), it has been thought that statutes which
trench upon First Amendment rights are facially void even if the
conduct of the party challenging them could be prohibited under a
more narrowly drawn scheme.
See, e.g., Baggett v. Bullitt,
377 U. S. 360,
377 U. S. 366
(1964);
Coates v. City of Cincinnati, 402 U.
S. 611,
402 U. S. 616
(1971);
NAACP v. Button, 371 U. S. 415,
371 U. S.
432-433 (1963).
Nor is it relevant that the State here "sought to prevent
[bacchanalian revelries]," rather than performances by "scantily
clad ballet troupe[s]." Whatever the State "sought" to do, the fact
is that these regulations cover both these activities. And it
should be clear that a praiseworthy legislative motive can no more
rehabilitate an unconstitutional statute than an illicit motive can
invalidate a proper statute.
[
Footnote 3/4]
Indeed, there are some indications in the legislative history
that California adopted these regulations for the specific purpose
of evading those standards. Thus, Captain Robert Devin of the Los
Angeles Police Department testified that the Department favored
adoption of the new regulations for the following reason:
"While statutory law has been available to us to regulate what
was formerly considered as antisocial behavior, the federal and
state judicial system has, through a series of similar decisions,
effectively emasculated law enforcement in its effort to contain
and to control the growth of pornography and of obscenity and of
behavior that is associated with this kind of performance."
See also testimony of Roy E. June, City Attorney of the
City of Costa Mesa; testimony of Richard C. Hirsch, Office of Los
Angeles County District Attorney. App. 117.
[
Footnote 3/5]
I do not mean to suggest that this test need be rigidly applied
in all situations. Different standards may be applicable when
children are involved,
see Ginsberg v. New York,
390 U. S. 629
(1968); when a consenting adult possesses putatively obscene
material in his own home,
see Stanley v. Georgia,
394 U. S. 557
(1969); or when the material, by the nature of its presentation,
cannot be viewed as a whole,
see Rabe v. Washington,
405 U. S. 313,
405 U. S. 317
n. 2 (1972) (BURGER, C.J., concurring). Similarly, I do not mean to
foreclose the possibility that even the
Roth-Memoirs test
will ultimately be found insufficient to protect First Amendment
interests when consenting adults view putatively obscene material
in private.
Cf. Redrup v. New York, 386 U.
S. 767 (1967).
But cf. United States v. Reidel,
402 U. S. 351
(1971). But I do think that, at very least,
Roth-Memoirs
sets an absolute limit on the kinds of speech that can be
altogether read out of the First Amendment for purposes of
consenting adults.
[
Footnote 3/6]
Cf. Fuller, Changing Society Puts Taste to the Test,
The National Observer, June 10, 1972, p. 24:
"Context is the essence of esthetic judgment. . . . There is a
world of difference between Playboy and less pretentious girly
magazines on the one hand, and on the other, The Nude, a picture
selection from the whole history of art by that fine teacher and
interpreter of civilization, Kenneth Clark. People may be just as
naked in one or the other, the bodies inherently just as beautiful,
but the context of the former is vulgar, of the latter,
esthetic."
"The same words, the same actions, that are cheap and tawdry in
one book or play may contribute to the sublimity, comic
universality, or tragic power of others. For a viable theory of
taste, context is all."
[
Footnote 3/7]
Moreover, even if the
O'Brien test were here
applicable, it is far from clear that it has been satisfied. For
example, most of the evils that the State alleges are caused by
appellees' performances are already punishable under California
law.
See 409
U.S. 109fn3/11|>n. 11,
infra. Since the less
drastic alternative of criminal prosecution is available to punish
these violations, it is hard to see how "the incidental restriction
on alleged First Amendment freedoms is no greater than is
essential" to further the State's interest.
[
Footnote 3/8]
The Court pointed out that the statute
"does not distinguish between public and private destruction,
and it does not punish only destruction engaged in for the purpose
of expressing views. . . . A law prohibiting destruction of
Selective Service certificates no more abridges free speech on its
face than a motor vehicle law prohibiting the destruction of
drivers' licenses, or a tax law prohibiting the destruction of
books and records."
391 U.S. at
391 U. S.
375.
[
Footnote 3/9]
Of course, the State need not meet the clear and present danger
test if the material in question is obscene.
See Roth v. United
States, 354 U. S. 476
(1957). But, as argued above, the difficulty with California's
rules is that they do not conform to the
Roth test and
therefore regulate material that is not obscene.
See supra
at
409 U. S.
126-127.
[
Footnote 3/10]
This case might be different if the State asserted a primary
interest in stopping the very acts performed by these dancers and
actors. However, I have serious doubts whether the State may
constitutionally assert an interest in regulating any sexual act
between consenting adults.
Cf. Griswold v. Connecticut,
381 U. S. 479
(1965). Moreover, it is unnecessary to reach that question in this
case, since the State's regulations are plainly not designed to
stop the acts themselves, most of which are, in fact, legal when
done in private. Rather, the State punishes the acts only when done
in public as part of a dramatic presentation.
Cf. United States
v. O'Brien, supra, at
391 U. S. 375. It must be, therefore, that the asserted
state interest stems from the effect of the acts on the audience,
rather than from a desire to stop the acts themselves. It should
also be emphasized that this case does not present problems of an
unwilling audience or of an audience composed of minors.
[
Footnote 3/11]
Indeed, California already has statutes controlling virtually
all of the misconduct said to flow from appellees' activities.
See Calif.Penal Code § 647 (b)(Supp. 1972)(prostitution);
Calif.Penal Code §§ 261, 263 (1970)(rape); Calif.Bus. &
Prof.Code § 25657 (Supp. 1972)("B-Girl" activity); Calif.Health
& Safety Code §§ 11500, 11501, 11721, 11910, 11912 (1964 and
Supp. 1972)(sale and use of narcotics).
[
Footnote 3/12]
Of course, it is true that
Stanley does not govern this
case, since
Stanley dealt only with the private possession
of obscene materials in one's own home. But in another sense, this
case is stronger than
Stanley. In
Stanley, we
held that the State's interest in the prevention of sex crimes did
not justify laws restricting possession of certain materials, even
though they were conceded to be obscene. It follows
a
fortiori that this interest is insufficient when the materials
are not obscene and, indeed, are constitutionally protected.
[
Footnote 3/13]
The Twenty-first Amendment, in addition to repealing the
Eighteenth Amendment, provides:
"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 3/14]
The text of the Amendment is based on the Webb-Kenyon Act, 37
Stat. 699, which antedated prohibition. The Act was entitled "An
Act Divesting intoxicating liquors of their interstate character in
certain cases," and was designed to allow "dry" States to regulate
the flow of alcohol across their borders.
See, e.g., McCormick
& Co. v. Brown, 286 U. S. 131,
286 U. S.
140-141 (1932);
Clark Distilling Co. v. Western
Maryland R. Co., 242 U. S. 311,
242 U. S. 324
(1917). The Twenty-first Amendment was intended to embed this
principle permanently into the Constitution. As explained by its
sponsor on the Senate floor,
"to assure the so-called dry States against the importation of
intoxicating liquor into those States, it is proposed to write
permanently into the Constitution a prohibition along that
line."
"[T]he pending proposal will give the States that guarantee.
When our Government was organized and the Constitution of the
United States adopted, the States surrendered control over and
regulation of interstate commerce. This proposal is restoring to
the States, in effect, the right to regulate commerce respecting a
single commodity -- namely, intoxicating liquor."
76 Cong. Rec. 4141 (remarks of Sen. Blaine).
[
Footnote 3/15]
See Shapiro v. Thompson, 394 U.
S. 618 (1969).
But cf. Wyman v. James,
400 U. S. 309
(1971).
[
Footnote 3/16]
See Sherbert v. Verner, 374 U.
S. 398 (1963).
[
Footnote 3/17]
See Speiser v. Randall, 357 U.
S. 513 (1958).
[
Footnote 3/18]
See, e.g., Pickering v. Board of Education,
391 U. S. 563
(1968);
Keyishian v. Board of Regents, 385 U.
S. 589 (1967);
Baggett v. Bullitt, 377 U.
S. 360 (1964).
[
Footnote 3/19]
See, e.g., Baird v. State Bar of Arizona, 401 U. S.
1 (1971);
Konigsberg v. State Bar, 353 U.
S. 252 (1957);
Schware v. Board of Bar
Examiners, 353 U. S. 232
(1957).
But cf. Law Students Civil Rights Research Council v.
Wadmond, 401 U. S. 154
(1971);
Konigsberg v. State Bar, 366 U. S.
36 (1961).
[
Footnote 3/20]
See, e.g., Blount v. Rizzi, 400 U.
S. 410 (1971);
Hannegan v. Esquire Inc.,
327 U. S. 146,
327 U. S. 156
(1946).