Commonwealth v. Sees

Quirico, J.

(dissenting). In Revere v. Aucella, 369 Mass. 138 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976), we had before us the question of the validity of an ordinance of the city of Revere regulating the types of entertainment permitted at places licensed for the sale of alcoholic beverages to be consumed on the premises. The ordinance prohibited nude dancing of the type involved in this case. We concluded that “[t]he ordinance ... is within the powers granted to the city . . . and is not on its face inconsistent with our Constitution or laws.” Id. at 139-140. The defendant in the case now before us has been found guilty of violating this same ordinance by employing or permitting a nearly nude entertainer to dance on premises licensed both as a common victualler and for the sale of alcoholic beverages to be consumed thereon. This court is now reversing that conviction on the ground that the “activity here in question was protected expression under art. 16 [of the Declaration of Rights] and the ordinance is therefore invalid as applied.” 1

*541 I dissent from the decision of the court in this case, both for the reasons stated by the Chief Justice in his dissenting opinion and for the reasons stated below.

It appears that in some circumstances a performance by a nude dancer is protected by art. 16 as a form of “speech.” See Doran v. Salem Inn, Inc., 422 U.S. 922, 932-934 (1975). I do not believe, however, that the necessary circumstances are present in this case. The mere fact that an act, conduct, or performance qualifies as “speech” under art. 16, or under the First Amendment to the. Constitution of the United States, 2 does not place it beyond reasonable regulation for any and all purposes and in all circumstances. In United States v. O’Brien, 391 U.S. 367 (1968), the defendant argued that “his act of burning his [draft] registration certificate was protected ‘symbolic speech’ within the First Amendment.” Id. at 376 . The Court made the assumption that there was a sufficient communicative element in O’Brien’s conduct to bring it within the First Amendment, but went on to hold 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. . . . [W]e think it clear that a government regulation is sufficently justified [a] if it is within the constitutional power of the Government; [b] if it furthers an important or substantial governmental interest; [c] if the governmental interest is unrelated to the suppression of free expression; and [d] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 376-377 .

In my opinion, the application to the present case of the four part test prescribed by the O’Brien decision requires the conclusion that the Revere ordinance, as applied and enforced here, does not unconstitutionally interfere with or otherwise violate either the defendant’s or the performer’s *542 right of “free speech” under art. 16 or “freedom of speech” under the First Amendment.

(a) There can certainly be no question at this late date that the regulation of the alcoholic beverage industry is within the constitutional power of the Commonwealth. “The liquor traffic has long been recognized as a source of danger to the public welfare, health and safety, and regulations governing the conduct of the business and frequently going to the extent of prohibiting it altogether have been sustained. . . . [Citations omitted.] The power of the State to protect itself by an exercise of the police power is commensurate with the nature of the evil which it seeks to eliminate.” Supreme Malt Prods. Co. v. Alcoholic Beverages Control Comm’n, 334 Mass. 59, 61-62 (1956). “The powers of the States in dealing with the regulation of the sale of intoxicating liquors are very broad. What they may wholly prohibit, they may permit only on terms and conditions prescribed by the Legislature. . . . [Citations omitted.] In dealing with a trade, which, because of its great potential evils, can be wholly prohibited, a wide power is given to the Legislature with respect to the delegation of discretionary powers.” Connolly v. Alcoholic Beverages Control Comm’n, 334 Mass. 613, 619 (1956). Indeed, as noted at the beginning of this dissenting opinion, this court held in Revere v. Aucella, supra at 143-146 , that powers delegated by the Commonwealth to the city of Revere included the power to enact the very same ordinance involved here.

(b) The next consideration is whether the ordinance, limited for the purposes of this case to the prohibition of nude dancing at establishments licensed for the sale of alcoholic beverages to be consumed on the premises, “furthers an important or substantial governmental interest.” United States v. O’Brien, supra at 377 . The government has an important and substantial interest in preserving the public safety and preventing the commission of criminal acts, and it is unquestioned that the regulation of the sale of intoxicating liquors is a proper means for accomplishing this purpose. See Aristocratic Restaurant of Mass., Inc. v. Alcoholic Bever *543 ages Control Comm’n (No.1), post 547, 553 (1978). The additional question here is whether the protection of the public safety is furthered by the prohibition of nude dancing in establishments that are licensed to serve liquor. I believe that the proper municipal authorities of Revere could and did conclude that it is.

The Chief Justice has noted in his dissenting opinion that “[t]he community may rationally conclude that nude dancing in drinking places encourages other conduct of a criminal nature. The records in recent appealed cases can be said to lend support to that reasoning.” In California v. LaRue, 409 U.S. 109, 111 (1972), the United States Supreme Court noted that “in licensed establishments where ‘topless’ and ‘bottomless’ dancers, nude entertainers, and films displaying sexual acts were shown, numerous incidents of legitimate concern to the . . . [State] had occurred.” The Court went on to list a number of criminal activities that took place on or around these premises. Id. It is my opinion that the municipal authorities, in exercising their legislative or administrative power to regulate the liquor business, may rely on their common knowledge of these conditions which probably, and perhaps inevitably, follow in the wake of the concurrence of the service of alcoholic beverages and entertainment of the kind prohibited by the Revere ordinance. There is a sufficient history of the cause and effect in such circumstances to provide a rational basis for the exercise of the legislative power to protect against the consequences.

(c) I further conclude that the governmental interest in this case is not related to the suppression of free expression. Nude dancing in licensed establishments is not prohibited “because the communication allegedly integral to the conduct is itself thought to be harmful,” O’Brien, supra at 382 , but rather to prevent the evils that result from the presentation of this type of entertainment in establishments serving liquor. The message communicated by the dancers is not relevant; indeed, if activity that was unrelated to sex resulted in the same criminal abuses when accompanied by liquor sales, it too could be regulated. No restriction exists to the *544 dancers’ communicating their message at some place other than a licensed establishment.

(d) In view of the evil at which the ordinance is directed, I believe that the limitation of its application to places licensed to sell alcoholic beverages to be consumed on the premises satisfied the requirement that “the incidental restriction on alleged [art. 16 or] First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, supra at 377 . This ordinance leaves Cindy Martini free to exercise her right of free speech, whether by dancing in the nude or otherwise, at any place in the city of Revere except where alcoholic beverages are sold and served, and it leaves the defendant free to employ or permit her to do so in those places. In my opinion this incidental restriction on the right of free speech, whether Cindy Martini’s or the defendant’s, cannot be held to be greater than reasonably necessary when viewed in balance with the city’s interest in regulating the alcoholic beverage business, and protecting its citizenry, within its borders. The ordinance is “generally necessary to protect one or more of the legitimate governmental interests,” and is therefore not overly broad. Procunier v. Martinez, 416 U.S. 396, 414 (1974).

A similar application of the O’Brien test has been made by the California Supreme Court in Crownover v. Musick, 9 Cal. 3d 405 (1973), cert, denied sub nom. Reynolds v. Sacramento, and sub nom. Owen v. Musick, 415 U.S. 931 (1974), to uphold local ordinances against contentions that they facially violated free speech guaranties. The local ordinances prohibited nudity “while participating in any ‘live act, demonstration or exhibition’ in any public place or by entertainers in establishments serving food or beverages, excepting in all instances theaters and similar establishments.” Id. at 424. For the purpose of the case the court assumed that the entertainment prohibited possessed a significant enough “communicative element” to bring the First Amendment into play. Id. at 423-427. It nevertheless upheld the ordinances on the basis of the O’Brien analysis. Id. *545 at 427-428 . The court held: “The ordinances proscribe no more than is necessary to ban the nudity which has been deemed harmful to public welfare or morals. We are satisfied therefore that . . . the ordinances before us meet all of the four requirements set down by the Supreme Court in the O’Brien case.” Id. at 428 . 3

In addition to my belief that the ordinance as applied here is valid under the test of the O’Brien case, I also question the court’s interpretation of, and reliance on, the cases of California v. LaRue, 409 U.S. 109 (1972), and Doran v. Salem Inn, Inc., 422 U.S. 922 (1975). The court, it appears, reads the LaRue case as holding that, but for the Twenty-first Amendment, the prohibition of nude dancing in licensed establishments would violate the free speech guaranty of the First Amendment. It reasons that the scope of the coverage of the First Amendment is generally the same as that of art. 16 of the Declaration of Rights, and then argues that in this case there is “no provision of our Constitution [that] gives a preferred position to regulation of alcoholic beverages” so as to limit the scope of art. 16 in a way comparable to the supposed limitation on the First Amendment. Therefore, the court holds that art. 16 prevents the prohibition of nude dancing even in licensed establishments.

It is my opinion, however, that the reading of the LaRue case supporting such an analysis is unnecessarily narrow. I find no language in the LaRue opinion itself that requires the conclusion that the Twenty-first Amendment is a sine qua non for upholding regulations of the type in question here. Dictum in the later Doran case does indeed tend to support such an interpretation as noted by this court in the present case. However, the still more recent case of Craig v. Boren, 429 U.S. 190 (1976), undermines this view. In Craig the Court relegates the Twenty-first Amendment to its historical position as “an exception to the normal operation of *546 the Commerce Clause. . . . Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful.” Id. at 206 . It is therefore possible and perhaps probable that the Supreme Court would have upheld the regulations attacked in LaRue on the basis of the First Amendment even if the Twenty-first Amendment argument were not available to it. This view is supported by the decisions of other States, issued since the La-Rue decision, that have upheld similar regulations in the face of challenges based expressly on free speech provisions of their own State Constitutions. See Crownover v. Musick, supra at 418; Cheetah Enterprises, Inc. v. County of Lake, 22 Ill. App. 3d 306 (1974). 4 I therefore believe that this court should also uphold the prohibition of nude dancing in licensed establishments against attacks grounded in art. 16.

I would not interpret or apply art. 16 as affording Cindy Martini or the defendant any greater right, or as affording the citizens of Revere any lesser right, than they would have under the First Amendment as construed by the United States Supreme Court in United States v. O’ Brien, supra. Whether the city of Revere has taken note of the consequences in other communities of the mixing of alcoholic beverages and the kind of “free speech” claimed for the entertainer in this case, and wants no part of it, or has itself experienced some unhappy consequences of such mixing and wants no more of it, I do not believe that it is rendered impotent to protect itself therefrom under any reasonable interpretation and application of art. 16 or the First Amendment. In my view neither of these constitutional provisions compels any municipality to tolerate, suffer or permit a *547 local counterpart of Boston’s “adult entertainment district,” also commonly referred to as the “combat zone,” to operate within its borders.

In the circumstances of this case I do not believe that it is unconstitutional for the city of Revere to say to persons within its borders, that, if they want to drink alcoholic beverages and also to see or hear the conduct which is proscribed by the ordinance in question, they must do each in a different place.

The pertinent language of art. 16 is: “The right of free speech shall not be abridged.”

The pertinent language of the First Amendment is: “Congress shall make no law . . . abridging the freedom of speech . . . .”

For a similar treatment of the test of the O’Brien case see the opinion of the three-judge court in Kew v. Senter, 416 F. Supp. 1101, 1105 (N.D. Tex. 1976).

Many States have upheld prohibitions of nude entertainment without expressly discussing the free speech provisions of their own State Constitutions. See Yauch v. State, 109 Ariz. 576 (1973) (en banc) (Art. 2, § 6); Wright v. Huxley, 249 N.W.2d 672 (Iowa 1977) (Art. 1, § 7); Midtown Palace, Inc. v. Omaha, 193 Neb. 785 (1975) (Art. 1, § 5); Salem v. Liquor Control Comm’n, 34 Ohio St. 2d 244 (1973) (Art. 1, § 11); Seattle v. Hinkley, 83 Wash. 2d 205 (1973) (en banc) (Art. 1, § 5).