Opinion
No. 38330.
Filed June 16, 1972.
1. Constitutional Law. Freedom of speech as guaranteed by the First Amendment may include the right to express thoughts and ideas by means other than speech. 2. Intoxicating Liquors: States: Powers. The power of a state to absolutely prohibit the sale of intoxicating liquors includes the power to prescribe conditions under which it may be sold. 3. ___: ___: ___. A state may protect its people against the evils incident to the use of intoxicants, and may exercise a large discretion as to the means employed. 4. Municipal Corporations: Ordinances: Powers: Constitutional Law. The use of the police power is ordinarily a matter of public policy and of legislative judgment with which the courts will not interfere unless it exceeds constitutional bounds. 5. ___: ___: ___: ___. A police regulation is not necessarily invalid because it incidentally affects a constitutional right. 6. Municipal Corporations: Ordinances: Intoxicating Liquors: Powers: Nudity. An ordinance prohibiting topless female dancing in places licensed for the sale of intoxicating liquors is a valid exercise of the police power. 7. Constitutional Law: Words and Phrases. Although "conduct" may entail some elements of expression or speech, when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. 8. Constitutional Law: Words and Phrases: Intoxicating Liquors: Nudity. When nudity is employed as a sales promotion in establishments purveying intoxicating liquors, it is essentially "conduct" and subject to regulation or prohibition. 9. Constitutional Law. When speech elements are only incidental to a course of conduct or activity, such activity in its entirety is not entitled to the protection of the First Amendment.
Appeal from the district court for Douglas County: SAMUEL, P. CANIGLIA, Judge. Affirmed.
Stern, Harris, Feldman, Becker Thompson, for appellant.
Herbert M. Fitle, Frederick A. Brown, Edward M. Stein, Gary Bucchino, and Roger Stanway, for appellees City of Omaha et al.
Walter J. Matejka, for appellee Major Liquors, Inc.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
In this action the sole plaintiff to appeal challenges the constitutionality of an ordinance of the city of Omaha which provides for the revocation of a liquor license if topless dancing by a female is permitted on the licensed premises. It is asserted that the ordinance conflicts with the First Amendment to the Constitution of the United States which guarantees freedom of speech and with the provisions of the Fourteenth Amendment for equal protection of the laws. We affirm the judgment of the district court holding the ordinance is valid.
Plaintiff contends that "freedom of speech" as guaranteed by the First Amendment includes the right to express thoughts and ideas by means other than speech. Cited in support of this view is Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S. Ct. 777, 96 L. Ed. 1098, holding that motion pictures are protected as they are a significant medium for the expression of ideas; In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, cert. den., 395 U.S. 910, which held that topless dancing could not be banned under an ordinance prohibiting "lewd or dissolute conduct"; Glancy v. County of Sacramento, 17 Cal.App.3d 504, 94 Cal.Rptr. 864, holding an ordinance banning topless dancing without reference to obscenity was overbroad and unconstitutional; and Hudson v. United States (D.C. App.), 234 A.2d 903, sanctioning a burlesque dance in the absence of proof of obscenity. The Giannini and Hudson decisions are based upon the premise that obscenity was not present or satisfactorily proved.
In support of the "equal protection" argument under the Fourteenth Amendment, plaintiff asserts, in substance, that persons engaged in an industry handling intoxicating liquors cannot be classified and dealt with differently from people engaged in other callings. The only case cited which is directly in point, in that it deals with the liquor industry, is La Rue v. State of California, 326 F. Supp. 348. This case held that an ordinance prohibiting live entertainers from engaging in certain "sexual conduct" without regard to the question of obscenity was unconstitutional. Portions of the ordinance prohibiting nude or seminude entertainers were voided.
Defendants rely upon three theories to sustain the ordinance. First, that the liquor industry is subject to strict regulation under constitutionally delegated police powers; second, that public dancing by topless female entertainers is "conduct" not speech or expression; and third, that "speech" elements involved are merely incidental to conduct or activity.
In earlier years saloons, barrooms, and taverns dispensing alcoholic liquors were largely unregulated. This gave rise to numerous abuses. Public disgust and denunciation gradually brought about a steady growth of restrictive controls and culminated in a constitutional amendment imposing absolute prohibition. With the repeal of the national prohibition act, the question of "wet or dry" was again left up to the individual states. One by one the states have again authorized the manufacture, distribution, and sale of alcoholic liquors but in so doing have, without exception, made use of the police powers to impose strict controls on the industry.
The following excerpts from 45 Am. Jur. 2d, Intoxicating Liquors, 23, p. 502, and 24, p. 503, are indicative of the general police power: "The power of a state to absolutely prohibit the sale of intoxicating liquor includes the power to permit the sale thereof under definitely prescribed conditions, and such business or traffic may be permitted only under such conditions as will limit to the utmost its evils. * * *
"A state, in the exercise of its undoubted power to protect its people against the evils incident to traffic in and the use of intoxicants, may exercise large discretion as to the means employed. The form or method of regulation and control is one of public policy for the decision of each state, and frequently the prevailing view is reflected by appropriate legislative enactments. * * *
"The state has far broader power and greater latitude to regulate and restrict the use, distribution, or consumption of liquor than to regulate or restrict ordinary business, because of the effect of the former on the health and welfare of the public. The scope and extent of such regulations depend solely upon the judgment of the lawmakers, with the wisdom of which the judiciary has no concern, provided, always, that they do not transcend the limits of state authority by invading rights which are secured by the Constitution of the United States, and provided further that the regulations adopted do not operate a discrimination against the rights of residents or citizens of other states." See, also, 285, p. 682, wherein it is stated: "Regulations, both municipal and statutory, may properly prohibit the use of attractions or other amusements which may make places where intoxicating liquors are sold attractive to the loiterer. It is not a question, under such regulations, of whether the amusements are of such character as to annoy or disturb persons living nearby or doing business in the vicinity, but whether the prohibited acts will tend to attract or entice people into the place where the liquors are sold."
These general propositions are recognized in federal as well as state law. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128, recognizes the right of a state to absolutely prohibit the manufacture, transportation, sale, or possession of intoxicating liquors and holds: A state's power absolutely to prohibit the manufacture, sale, transportation or possession of intoxicants includes the lesser power to permit these things only under definitely prescribed conditions.
A state may protect its people against evil incident to intoxicants; and may exercise large discretion as to means employed. See, also, In re Tahiti Bar, Inc., 395 Pa. 355, 150 A.2d 112.
In Joseph E. Seagram Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S. Ct. 1254, 16 L. Ed. 2d 336, in approving, as within the police power, certain state price regulations, the court held: It is not the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process.
Under the system of government created by the Federal Constitution it is up to legislatures, not courts, to decide on the wisdom and utility of legislation.
Due process does not authorize courts to held laws unconstitutional when they believe the legislature has acted unwisely.
Courts do not substitute their social and economic beliefs for the judgment of legislative bodies.
Were constitutionally proscribed acts interfering with personal privileges and liberties literally interpreted, in regard to many subjects, we could have no laws whatsoever. Every law affects and restricts individual rights in some manner and to a greater or lesser degree. They all regulate human conduct and interests in one form or another. For this reason rules of necessity and reasonableness are used in determining the validity of many acts legislatively proscribed. "A police regulation, obviously intended as such, and not operating unreasonably beyond the occasions of its enactment, is not invalid because it may affect incidentally the exercise of some right guaranteed by the constitution." In re Anderson, 69 Neb. 686, 96 N.W. 149.
"Persons, and their rights of liberty and property, are subject to restraints and burdens which legislature imposes upon them for common good, and, although exercise of a police power may inconvenience an individual or group and may curtail the use, or depreciate the value of property, if the measure reasonably tends to accomplish the purpose of its enactment without unreasonably or arbitrarily exceeding the needs of the occasion, it is a valid exercise of the police power." State v. Sullivan, 245 Minn. 103, 71 N.W.2d 895. See, also, Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388, 126 A. L. R. 729; Central Markets West, Inc. v. State, 186 Neb. 79, 180 N.W.2d 880.
Other jurisdictions have divided on the question of whether or not topless dancing by females may be prohibited in places dispensing alcoholic liquors. It has been held that in the absence of obscenity such dancing cannot be prohibited as it is in violation of First Amendment rights. See, In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, cert. den., 395 U.S. 910; La Rue v. State of California, 326 F. Supp. 348.
In Paterson T. G. Owners Assn. v. Borough of Hawthorne, 108 N.J. Super. 433, 261 A.2d 677, it was held that a "Community has right to ban from premises of alcoholic beverage licensees the `topless' and `bottomless' entertainer or dancer." See, also, Philadelphia Retail L. D. Assn. v. Pennsylvania Liquor Control Board, 360 Pa. 269, 62 A.2d 53; Adams Newark Theatre Co. v. City of Newark, 22 N.J. 472, 126 A.2d 340; Hodges v. Fitle, 332 F. Supp. 504.
Is the restriction against females dancing when "topless" or seminude an unreasonable regulation of businesses engaged in dispensing alcoholic liquors? We conclude that it is not. The prime objection of plaintiffs to the ordinance, as appears from their pleading and evidentiary exhibits, is that the banning of such entertainment reduces their patronage and adversely affects their income. This confesses that the object of this type of entertainment is to lure customers and induce them to indulge in the consumption of alcoholic liquors. The consumption of alcoholic liquors is a practice which although legalized, has never been encouraged in American society. If the use of harmful drugs were to be legalized, should we encourage their use? The attendant evils of intoxication, alcoholism, and highway mayhem are well known and understood. One who consumes alcoholic liquors necessarily succumbs to their influence for the time being. He is more susceptible to ideas and emotions generated by the environment and much more likely to accept what transpires in a lewd or obscene manner than if he viewed the same degree of nudity in an art gallery or witnessed the same activities on the legitimate stage. The basic appeal of this type of entertainment in bars is the titillation of erotic instincts. It is that expectation which attracts the clientele. Such an appeal may well vary in its effects on different individuals as well as with the degree of intoxication, but the police power is intended for the protection of all individuals and the fact that some may not need such protection is irrelevant.
The theory that the ordinance violates the constitutional guarantee of freedom of speech is based upon the ground that dancing, like speech or other activities, may be a "medium of expression." In other words, it may be what is known as "interpretative dancing." The cases above cited which sanction topless dancing are based on this premise and draw the line only at obscene performances. This line of demarcation is now, for all practical purposes, nonexistent. Under terms defined by the federal courts the word "obscene" is now obsolete and without meaning. That definition as set out in La Rue v. State of California, 326 F. Supp. 348, is as follows: "`Under this definition (of obscenity), as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.'" There are few, if any, moves or acts performed by human beings which are not made for some purpose, and which, when simulated, may not be deemed expressive. This being true, adherence to the foregoing definition of obscenity would permit the public performance of almost any type of simulated human behavior.
We do not believe that the line separating the licit from the illicit need be so finely drawn. There is a difference between "conduct" and "speech." In United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, it is held: "We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."
In City of Portland v. Derrington, 253 Or. 289, 451 P.2d 111, cert. den., 396 U.S. 901, 90 S. Ct. 212, 24 L. Ed. 2d 177, it is stated: "When nudity is employed as sales promotion in bars and restaurants, nudity is conduct. As conduct, the nudity of employees is as fit a subject for governmental regulation as is the licensing of the liquor dispensaries and the fixing of their closing hours. * * *
"Whether or not we agree with the wisdom of the city council's attempt to legislate morals, the question is not one of legislative wisdom, but one of constitutional power. The chief aim of the ordinance is to regulate conduct deemed by the lawmakers to be injurious to health, safety, and morals. The city's legislative judgment in the matter should be upheld unless the statute unreasonably impinges upon those elements of communication which may be incidental to the regulated conduct. We do not believe the interference with communication in the case at bar has enough substance to present a First Amendment question. The error in the court below was in treating the problem as one of free speech and nothing more."
In Hoffman v. Carson (Fla.), 250 So.2d 891, involving a nude go-go dancer, it is said: "Appellant loses sight of the distinction between speech and conduct. The statute is not directed at First Amendment rights of free expression, nor does it concern itself with obscenity * * *. Rather, it is directed at the exposure of sexual organs and nudity, a matter of conduct thought to be a crime under the common law * * *, and generally considered as having a reasonable relationship to the public welfare, and, therefore, within the police power of the Legislature. * * *
"We find that appellant's performance falls short of presenting a `speech' issue sufficiently important to outweigh the State's interest in curtailing lascivious exposure in public places. Contributing to this conclusion is the fact that appellant admits that she usually was tipped a certain amount for removing her brassiere and was tipped an additional substantial sum for removing her pants. The trial judge found that: `Apparently the spontaneity of her "self-expression" was in direct proportion to the monetary consideration she received from the barflies rather than from her absorption in the artistry of her dance.'"
Is the baring of breasts essential to the expressions intended to be conveyed by the female dancers? Three dancers testified. One was silent on this subject; one conceded that it was not; and the third thought it necessary but conceded the same results could be attained if she were completely covered by a leotard. For a great many years various forms of dancing of an interpretative or expressive nature have been popularly recognized. Perhaps the best known and most highly skilled and regarded as a form of art is the ballet. Although practitioners of the highest form of interpretative or expressive dancing, ballet dancers have not found nudity in any degree to be essential to their performance. The story to be told is expressed without resort to nudity. This being true, it would seem that lesser forms of the art of dancing should not find it necessary or essential to resort to varying degrees of nudity as a medium of expression. These factors, in a case such as we have before us, serve to point up the distinction between conduct and speech.
Whether or not a question of free speech is inherent in the situation presented when the speech elements of an activity are merely incidental to the activity, then the activity in its entirety is not by virtue of its speech elements entitled to the protection of the First Amendment. See Paladino v. City of Omaha, 335 F. Supp. 897.
The argument that the ordinance violates the equal protection clause of the Fourteenth Amendment is not strenuously urged. A legislative body has power to make reasonable classifications for purposes of legislation. See State ex rel. Sorensen v. First State Bank, 122 Neb. 109, 239 N.W. 646.
"The right to engage in the sale of intoxicating liquors involves a mere privilege; and restrictive regulations or a suppression of the traffic do not violate provisions of the state and federal Constitutions relating to due process, privileges or immunities, uniformity, nor, unless wholly arbitrary in their discrimination between persons, the equal protection of the law." Safeway Stores, Inc. v. Nebraska Liquor Control Commission, 179 Neb. 817, 140 N.W.2d 668. See, also, Marsh Marsh, Inc. v. Carmichael, 136 Neb. 797, 287 N.W. 616.
The judgment of the district court is affirmed.
AFFIRMED.