Cert petition in Georgia adult-entertainment tax case

A couple of weeks ago, I filed a cert petition in Georgia Ass’n of Club Executives v. Georgia and Georgia Ass’n of Club Executives v. O’Connell. (For procedural reasons, these were  filed as two separate cases, but they raise identical issues, and the Georgia Supreme Court decided them in a combined opinion.)

Together with the team at Freed Grant LLC, we challenged a Georgia statute imposing a tax on adult entertainment establishments, a group of businesses defined in a content-discriminatory way, based on whether “[t]he entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation . . . .” Our position was that, as a content-discriminatory enactment, this tax should be evaluated under strict scrutiny—and should fail because the government could have raised the same amount of taxes in a non-content-discriminatory way, out of general revenues.

This case should be of interest even if you’re not interested in adult entertainment (indeed, even if you’re hostile to adult entertainment). The big question here is whether a facially content-discriminatory enactment (that would otherwise be evaluated under strict scrutiny) should be considered content-neutral (and thus evaluated under intermediate scrutiny) if it has a content-neutral justification. This means this case is closely related to the abortion-clinic buffer-zone cases that rely on Hill v. Colorado—and, as you may have read on this blog (here or here), the Supreme Court has recently denied cert in a case that presented the issue of whether to overruled Hill.

Hopefully the Supreme Court will consider our cert petition sometime in March or April. I’m reprinting the main text of the introductory part of our cert petition below (some portions and citations omitted). If you want to write an amicus brief, you have until March 20 to file one—let me know by personal message if you’re interested! If you want to read the whole thing in its beautiful formatted form (thanks to Counsel Press), you can click here.

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Question Presented

A Georgia statute imposes a tax that, on its face, singles out businesses defined by the content of their expression; the State seeks to justify the tax by the need to address “secondary effects.” Is this tax subject to strict scrutiny under the First Amendment because it is facially content-discriminatory, as recently reaffirmed by Reed v. Town of Gilbert, 576 U.S. 155 (2015), or does a content-neutral rationale make the tax subject to intermediate scrutiny under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)?

Statutory Provisions Involved

Ga. Code Ann. § 15-21-201(1) provides, in relevant part:

(1)    “Adult entertainment establishment” means any place of business or commercial establishment where alcoholic beverages of any kind are sold, possessed, or consumed wherein:

(A)   The entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation . . . .

Ga. Code Ann. § 15-21-209 provides, in relevant part:

(a)    By April 30 of each calendar year, each adult entertainment establishment shall pay to the commissioner of revenue a state operation assessment equal to the greater of 1 percent of the previous calendar year’s gross revenue or $5,000.00. This state assessment shall be in addition to any other fees and assessments required by the county or municipality authorizing the operation of an adult entertainment business. . . .

(c)    The assessments collected pursuant to this Code section shall be remitted to the Safe Harbor for Sexually Exploited Children Fund Commission, to be deposited into the Safe Harbor for Sexually Exploited Children Fund.

Statement

This Court has long held that content-discriminatory (i.e., content-based) governmental enactments must satisfy strict scrutiny; a content-neutral justification cannot transform a facially content-discriminatory enactment into a content-neutral one. This principle goes back several decades. See, e.g., Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987); Simon & Schuster v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). And this Court has recently strongly reaffirmed this principle. See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); Barr v. Am. Ass’n of Polit. Consultants, 591 U.S. 610, 618 (2020) (plurality opinion) [hereinafter AAPC].

However, in other cases, this Court has stated that even a facially content-discriminatory regulation can be treated as a content-neutral “time, place, and manner restriction” and evaluated under intermediate scrutiny, so long as it is justified without reference to content. This rule has been stated in the context of adult entertainment, where the government’s claimed justification has been the need to combat “secondary effects.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). But this “content-neutral justification” rule has since grown to be applied in very different areas—for instance, the regulation of sound amplification in a municipal park, see Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), and abortion-clinic buffer zones, see Hill v. Colorado, 530 U.S. 703, 719 (2000).

And this Court has assumed the validity of the content-neutral justification rule in even more areas—the regulation of political protests near foreign embassies, see Boos v. Barry, 485 U.S. 312, 320 (1988), the regu

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