Issue
The Ninth Circuit Court of Appeals recently addressed the issue of whether a city violated the First Amendment rights of a club owner when it suspended the club’s erotic dance license because the club violated the city’s alcohol licensing laws. Talk of the Town v. Department of Finance and Business Services (2003 WL 22087590)
Facts
Talk of the Town (TOT) is a business licensed by the City of Las Vegas to present erotic dancing. City temporarily suspended TOT’s erotic dance license because it violated City’s liquor laws by allowing liquor consumption without a license. TOT filed a lawsuit to stop City from enforcing the suspension of its erotic dance license, arguing that City violated its First Amendment rights. City countered by arguing that the First Amendment was not implicated. The federal district court concluded that one of the municipal ordinances upon which City relied to suspend the license was unconstitutional.
Appellate Court Decision
The Ninth Circuit Court of Appeals agreed with City that the First Amendment was not implicated. The Court noted that City’s ordinance barring the consumption of alcohol in establishments that do not have valid liquor licenses does not regulate “conduct containing an element of protected expression.” Furthermore, by requiring establishments to have valid liquor licenses, City did not place a disproportionate burden on those engaged in expressive conduct (such as erotic dance establishments) – the liquor license requirement “applies to all businesses, whether they be bookstores or bars.”
TOT claims that the suspension of its erotic dance license was a prior restraint of its free speech because the City ordinances did not provide adequate procedural safeguards. The Court rejected this argument, again focusing on the fact that City was enforcing a generally applicable liquor license law. “[T]he presence of protected expressive conduct [i.e., erotic dancing] alongside unprotected, illicit conduct [i.e., serving liquor without a license] does not bar enforcement of a generally applicable law.”
The Court therefore concluded that the district court erred in determining that TOT was entitled to additional procedural safeguards. The Court sent the case back for further proceedings.
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