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California v. La Rue

Supreme Court of the United States · 1972 · Constitutional Law

Constitutional LawFirst AmendmentTwenty-first AmendmentLiquor licensingExpressive conductTwenty-first AmendmentFirst Amendmentliquor by the drink

Facts

California's Department of Alcoholic Beverage Control, which licenses the sale of alcoholic beverages and may suspend or revoke licenses contrary to public welfare or morals, promulgated regulations governing entertainment in bars and nightclubs it licensed. After public hearings, the Department relied on evidence of sexual conduct and related criminal activity in licensed premises where topless and bottomless dancing, nude entertainment, and sexually explicit films were shown. The challenged regulations prohibited specified actual or simulated sexual acts, touching or fondling of certain body parts, display of pubic hair, anus, vulva, or genitals, the presence of persons exposing genitals or anus, and films or pictures depicting such conduct on licensed premises. Licensees and dancers sued under federal civil-rights statutes, and the District Court held substantial portions of the rules unconstitutional.

Issue

Whether California may, consistent with the First and Fourteenth Amendments, prohibit certain sexually explicit live entertainment and films in establishments licensed to sell liquor by the drink. More specifically, the question was whether these regulations are facially invalid notwithstanding the State's authority under the Twenty-first Amendment.

Rule

A State's authority to regulate liquor under the Twenty-first Amendment gives added support to regulations that prohibit certain sexual performances and depictions in establishments licensed to sell liquor by the drink, so long as the agency's conclusion that such entertainment and liquor service should not coexist is not irrational. The State in this setting is not limited to regulating only material obscene under Roth or only conduct satisfying O'Brien, because it may confine such performances in licensed liquor premises without banning them across the board.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Ohio Beverage Control Board adopts a rule forbidding live performances depicting simulated oral sex or exposing genitals in taverns licensed to sell mixed drinks in Cleveland and Columbus. The same performances remain lawful in ordinary theaters and private clubs without liquor-by-the-drink licenses. A tavern owner brings a facial First Amendment challenge.

How should a court most likely rule on the facial challenge?

Explanation. The majority held that analysis begins with the Twenty-first Amendment when the regulation concerns bars and nightclubs licensed to sell liquor by the drink. Even if some covered performances have First Amendment protection and are not obscene, the state may confine them from licensed liquor premises rather than ban them everywhere. On a facial challenge, the regulation is valid if the agency's conclusion that liquor service and such sexual entertainment should not coexist is not irrational.