The First Amendment Trumps the 21st (and "Adverse Secondary Effects" are more than mere Magic Words

The Sixth Circuit so held in Hamilton’s Bogarts, Inc., et al. v. State of Michigan, et al. ___ F.3d ___ (6th Cir. 2007) in a decision released on August 30, 2007.

The State of Michigan imposed a new restrictive law regarding serving alcohol at nude dancing establishments. The Eastern District of Michigan essentially held that the 21st Amendment gave the states the right to do that, regardless of First Amendment concerns. The Sixth Circuit rejected this position, relying on 44 Liquormart v. Rhode Island.

In rejecting the plaintiffs’ First Amendment claim, the district court relied on New York State Liquor Authority v. Bellanca, 452 U.S. 714, 715 (1981) and California v. LaRue, 409 U.S. 109 (1972). D. Ct. Op. at 6, 8. The rationale of these cases was that under the authority granted to the states in the Twenty-first Amendment to regulate liquor sales, a state could prohibit nude dancing in places where liquor is sold. The state relies almost entirely on this reasoning here. Unfortunately for the state, the Supreme Court has entirely abandoned this rationale for upholding regulations that raise First Amendment concerns in places where alcohol is sold. See 44 Liquormart v. Rhode Island, 517 U.S. 484, 516 (1996) (“Without questioning the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty-first Amendment. As we explained in a case decided

The Sixth seemed to be on a patriotic tear in this opinion.

[The 21st]Amendment does not license the States to ignore their obligations under other provisions of the Constitution.’ . . . . Accordingly, we now hold that the Twenty-first Amendment does not qualify the Constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment.”)… [T]he States’ inherent police powers provide ample authority to restrict the kind of ‘bacchanalian revelries’ described in the LaRue opinion regardless of whether alcoholic beverages are involved.” 517 U.S. at 515. Thus, a state is allowed implement restrictions on nude dancing to combat the “secondary effects” that are likely to arise from the combination of liquor and nude dancing. See City of Erie v. Pap’s A.M., 529 U.S. 277, 293, 296-97 (2000). Although liquor consumption may well be a valid factor in a state’s consideration of secondary effects, it is no longer correct to argue that the Twenty-first Amendment provides greater authority to regulate expressive conduct wherever liquor is sold.

The Sixth Circuit rejected some of the Plaintiff’s claims regarding the vagueness of the regulation, but shored up the proper view of the adverse secondary effects doctrine. Many municipalities and activists attempt to shut down adult entertainment by reciting the “magic words” of “we are only trying to combat adverse secondary effects.” However, when you hear those words, you should see the subtitle: “we don’t like this expression, but we know that we can’t say that, so we will just say the words ‘adverse secondary effects.’” That used to fly, but modern jurisprudence, including the Alameda Books decision demands that the government show something in the realm of actual evidence.

Assuming arguendo that the lesser standard of intermediate scrutiny applies [to Michigan’s adult entertainment law], it would not be a difficult one to meet, but it is not toothless, and requires some showing of an important or substantial interest that the regulations are essential to address. Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 (1994) (“When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’ It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” (citation omitted)).

Yet not only does the state fail to produce any evidence regarding secondary effects or the impact of its rule, but it fails to even articulate what its interest is or how the regulations affect it.