Cert Petition in Georgia Adult-Entertainment Tax Case: Part 2
Yesterday, I blogged about the cert petition that I filed a couple of weeks ago in Georgia Ass’n of Club Executives v. Georgia and Georgia Ass’n of Club Executives v. O’Connell. That post reprinted the introductory part of the cert petition; here’s the main body of the brief. Again, 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.
As I said yesterday, 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.
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Reasons for Granting the Petition
This Court should grant certiorari because the boundary between the Reed and City of Renton doctrines is unclear; lower courts, including the Georgia Supreme Court in this case, have been wrongly extending the City of Renton reasoning to areas where it does not apply.
Reed correctly reaffirmed the general rule that content-discriminatory governmental enactments are evaluated under strict scrutiny. But City of Renton stated that certain enactments, even if facially content discriminatory, can be evaluated under intermediate scrutiny if the government seeks to justify them by the need to combat secondary effects. Because the proper scope of the City of Renton exception has never been clarified, lower courts have disagreed on what previous case law survives Reed, and some lower courts have extended City of Renton into areas far afield from its original grounding in judicial deference to zoning and land-use regulation. This Court should resolve this important question of First Amendment law, either by overruling the City of Renton/Hill line of cases or by cabining the scope of the content-neutral justification rule, for instance by holding that this reasoning is limited to zoning and land-use regulation, or by holding that this reasoning does not apply to facially content-discriminatory taxes.
A. This Court’s Recent Case Law Reaffirms the Traditional Rule on Content Discrimination and Strict Scrutiny.
1. Content-Discriminatory Government Action Is Subject to Strict Scrutiny.
Content-discriminatory (i.e., content-based) government action is subject to strict scrutiny. This principle has been established for decades. See Reed, 576 U.S. at 163; AAPC, 591 U.S. at 618 (plurality opinion); United States v. Playboy Entertainment Group, 529 U.S. 803, 813-15 (2000).
This is true whether or not “conduct” is involved: the intermediate-scrutiny test for expressive conduct associated with O’Brien applies only when state action is content neutral. See, e.g., Humanitarian Law Project, 561 U.S. at 27 (“O’Brien does not provide the applicable standard for reviewing a content-based regulation of speech . . . .”); see also Alexander Volokh, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, 2 J. Free Speech L. 627, 646 (2023). Even if the activity in this case were labeled as conduct, this Court’s doctrine on content discrimination would still apply: “The law here may be described as directed at conduct, as the law in Cohen [v. California, 403 U.S. 15 (1971),] was directed at breaches of the peace, but as applied to [petitioner] the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 561 U.S. at 28.
This Court has used a simple approach to determine whether a law is content based: “a law is content-based if a regulation of speech on its face draws distinctions based on the message a speaker conveys. That description applies to a law that singles out specific subject matter for differential treatment.” AAPC, 591 U.S. at 618-19 (plurality opinion) (internal quotation marks omitted). In AAPC, the law discriminated between robocalls on different topics, giving preferential treatment to robocalls made to collect government debt. “A robocall that says, ‘Please pay your government debt’ is legal. A robocall that says, ‘Please donate to our political campaign’ is illegal. That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.” Id. at 619; see also id. at 649 (Gorsuch, J., concurring in the judgment in part and dissenting in part). All nine Justices agreed that the law was content based, though a minority disagreed regarding whether strict scrutiny should be required. See id. at 639 (Breyer, J., concurring in the judgment in part and dissenting in part); see also id. at 636 (Sotomayor, J., concurring in the judgment).
This Court had already endorsed this approach in Reed, a case about a sign code treating political signs differently than other signs. “The Town’s Sign Code,” the Court wrote, “is content based on its face. . . . The restrictions in the Sign Code that apply to any given sign . . . depend entirely on the communicative content of the sign.” Reed, 576 U.S. at 164.
And this facial approach is rooted in long-standing precedent going back several decades. See, e.g., Humanitarian Law Project, 561 U.S. at 27 (“Plaintiffs want to speak to [various organizations], and whether they may do so under [the statute] depends on what they say.”); Simon & Schuster, 502 U.S. at 115-16 (“The Son of Sam law . . . singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content.”); Ark. Writers’ Project, 481 U.S. at 229 (“[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine’s tax status depends entirely on its content.”); Regan v. Time, 468 U.S. 641, 648 (1984) (“A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers.”); see also Volokh, supra, at 641-43.
2. The Tax Here Is Content Discriminatory.
The tax here is content discriminatory because it taxes establishments defined by their expression.
First, an establishment can become subject to the tax by having “nude or substantially nude persons dancing.” Second, an establishment can become subject to the tax by having “movements of a sexual nature”—and one cannot determine whether movements are sexual (or “simulat[e] sexual intercourse”) without examining their content and inspecting their message. Third, an establishment can become subject to the tax by presenting all this as “entertainment”; the wording confirms that what is taxed is a performance before spectators. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter, J., concurring in the judgment) (“[S]uch performance dancing is inherently expressive . . . .”); see also Volokh, supra, at 643-46.
A revenue officer will have to inspect the “entertainment” to determine whether the subject matter is erotic. This is the very definition of “content based.” (By contrast, merely appearing in public naked is “not an inherently expressive condition,” see City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion), and so laws that merely depend on whether one is in public naked are content neutral and receive intermediate scrutiny. See Bushco v. Utah State Tax Comm’n, 225 P.3d 153, 160-61 (Utah 2009).)
To be sure, this Court’s facial approach is not absolute; the mere fact that one must inspect content to see whether a law applies is not always enough to make that law content discriminatory. See City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022). But this Court’s holding in City of Austin was narrow, and it does not affect Reed‘s facial approach in cases like this one.
In City of Austin, a sign code regulated off-premises advertising (i.e., advertising for things located on different premises than the sign) more heavily than on-premises advertising (i.e., advertising for things located on the same premises). This may seem content discriminatory because one can’t tell whether a sign contains on-premises or off-premises advertising without reading it. But this Court nonetheless considered this sign code content neutral: “Unlike the sign code at issue in Reed,” the code “[did] not single out any topic or subject matter for differential treatment.” Id. at 71. The code’s focus on a neutral factor like location made it different from codes turning on “[a] sign’s substantive message,” embodying, for instance, “content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations.” Id.
Thus, even while it upheld that particular code, this Court reaffirmed in City of Austin that the facial approach still applies when a policy turns on substantive content or a specific subject matter. The Reed approach is thus unaffected in this case, where the tax depends precisely on the subject matter. See, e.g., Barnes, 501 U.S. at 570-71 (noting that nude dancing conveys an “erotic message”); City of Erie, 529 U.S. at 293, 296 (2000) (plurality opinion).
And, once one determines that the tax is content discriminatory and therefore receives strict scrutiny, it necessarily fails. Strict scrutiny requires the government to choose the least content-discriminatory means of pursuing its goal. But the government can always pursue its goal (here, raising revenue to fund programs that combat child sex trafficking) equally well by providing the same amount from general revenues.
3. Whether the Law’s Justificati
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