Georgia’s Legal Burlesque Over Strip Clubs and the First Amendment

​Is a Georgia statute, which imposes a special assessment on strip clubs, a restriction on expressive activity? This law provides that “adult entertainment establishments” must each year remit a “state operation assessment equal to the greater of 1 percent of the previous calendar year’s gross revenue or $5,000.” The state argues – and the Georgia Supreme Court agrees – that the tax is not a content-based restriction on speech because it endeavors to address these business’ negative “secondary effects.”
 
The Georgia Association of Club Executives, which represents the Peach State’s adult entertainment establishments, begs to disagree. The association argues that the tax directly targets their expressive content, and should thus be subject to strict scrutiny – among the most exacting standards of legal review.
 
Unfortunately, resolving these conflicting arguments will require some legal acrobatics rivaling those of any stage show. But the resolution could clarify the law for a range of First Amendment concerns.
 
At issue is a distinct split in legal thought surrounding content-based restrictions on speech. In Reed v. Town of Gilbert (2015), the U.S. Supreme Court reaffirmed the longstanding principle that content-based restrictions on speech are subject to strict scrutiny, and that content-neutral justifications for a law implicating the content of speech do not suffice to remove that law from strict scrutiny analysis.
 
But in City of Renton v. Playtime Theatres (1986), the Court found that regulations implicating content may be treated as content-neutral “time, place, and manner” restrictions subject to intermediate scrutiny where they are justified without reference to content. That case, like the present one, dealt with adult establishments. But in Hill v. Colorado (2000), the Court’s holding was expanded to other areas such as permitting a prohibition against family counseling or any other message to persons within 100 feet of a healthcare facility.
 
Over the years, courts have performed ever more convoluted jurisprudential dance routines when it comes to the clear conflicts between these two doctrines. And even if cases like Renton and Hill remain good law, the Court has never clarified where the line is when it comes to applying Reed versus Renton/Hill.
 
Under Reed, the content-based restrictions at issue in Renton/Hill might very well have been considered content-based and therefore subject to strict scrutiny. Justices Thomas, Gorsuch, and Barrett have, for example, called Hill “defunct.”
 
That’s why the Foundation for Individual Rights and Expression (FIRE) is weighing in on the case in an amicus brief supporting a certiorari petition to our nation’s highest court. When it comes to First Amendment jurisprudence, clarity in the law is critical, and uncertainty can chill speech just as thoroughly as any naked prohibition.
 
FIRE argues that the Georgia statute directly targets “adult entertainment establishments” based on their expressive content. It does so not through zoning or buffer regulations (as in Renton and Hill), but through a special tax on the economic activity associated with the expressive content in question. Further, it must be enforced by government officials who must examine (regrettably, we’re sure) whether the “dancing is nude, whether movements are sexual in nature, and whether these elements constitute ‘entertainment.’” As FIRE points out, this is a decidedly different proposition that broad, content-neutral laws against public nudity.
 
FIRE writes:
 
“The Court should end the confusion and clarify that Reed means what it says: laws that distinguish based on content are content-based, regardless of the government’s purported intent or justifications. The Court should in doing so explicitly acknowledge and resolve in favor of Reed the doctrinal inconsistencies that Renton and Hill introduced.”
 
Protect The 1st is inclined to agree with FIRE that the Court should resolve the divergent lines of caselaw at issue here. Coming to such a resolution need not be a Dance of the Seven Veils.

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