Amicus Brief in Georgia Adult-Entertainment Case
A few weeks ago, I blogged (Parts 1 and 2) about the cert petition I filed in Georgia Ass’n of Club Executives v. Georgia, where we raised a First Amendment challenge to a state tax on adult entertainment establishments. Now, the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass’n (FALA) have filed an amicus brief supporting the cert petition. These are great organizations, who do good work in litigating free speech cases—I’m grateful for their help!
I’m reproducing the text of their brief below. The lawyers for the two organizations are Bob Corn-Revere, Ronnie London, Ed Rudofsky, and (my former student) Cory Conley.
Interest of amici curiae
The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organiÂzation that defends the rights of all Americans to free speech and free thought—the essential qualities of liberty. Since 1999, FIRE has successfully defended First Amendment rights on college campuses nationÂwide through public advocacy, targeted litigation, and amicus curiae filings in cases that implicate expressive rights. In June 2022, FIRE expanded its advocacy beyond the university setting and now defends First Amendment rights both on campus and in society at large. In lawsuits across the United States, FIRE works to vindicate First Amendment rights without regard to the speakers’ views. E.g., Br. Amicus Curiae FIRE Supp. Pet’rs in No. 22-555 & Resp’ts in No. 22-277, Moody v. Netchoice, LLC, 603 U.S. 707 (2024); Br. Amicus Curiae FIRE Supp. Pet’rs, Free Speech Coal. v. Paxton, No. 23-1122 (filed May 16, 2024). FIRE is particularly opposed to government attempts to pass off content-based restrictions as regulations of conduct governed by intermediate or lesser scrutiny. See, e.g., Br. Amicus Curiae FIRE Supp. Pls.-Appellants, Alario v. Knudsen, No. 24-34 (9th Cir., filed May 6, 2024).
The First Amendment Lawyers Association (FALA) is a nonpartisan, nonprofit bar association comprised of attorneys throughout the United States and elsewhere whose practices emphasize defense of Freedom of Speech and of the Press, and which advocates against all forms of government censorship. Since its founding, its members have been involved in many of the nation’s landmark free expression cases, including cases before this Court. See, e.g., Ashcroft v. Free Speech Coalition, Inc., 535 U.S. 234 (2002) (successful challenge to Child Pornography Prevention Act argued by FALA member and former president H. Louis Sirkin); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (successful challenge to “signal bleed” portion of Telecommunications Act argued by FALA member and former president Robert Corn-Revere). In addition, FALA has a tradition of submitting amicus briefs to the Court on issues pertaining to the First Amendment. See, e.g., City of Littleton v. Z.J. Gifts D-4, LLC, 2004 WL 199239 (Jan. 26, 2004) (amicus brief submitted by FALA); United States v. 12,200-ft Reels of Super 8mm Film, 409 U.S. 909 (1972) (order granting FALA’s motion to submit amicus brief).
Summary of Argument
This Court has long recognized that, under the First Amendment, content-based laws are “presumpÂtively unconstitutional,” and subject to a rigorous form of strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Content-neutral “time, place, and manner” regulations, meanwhile, face the more forgiving standard of intermediate scrutiny. The reason is simple: content-based restrictions invite the government to play favorites with speech, an invitation the First Amendment firmly declines.
Laws that regulate speech based on its message or subject matter are rightly treated with extreme skepticism because they pose the greatest risk of government overreach. As the Court put it in Police Dep’t of Chicago v. Mosley, “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” 408 U.S. 92, 95 (1972). On the other hand, content-neutral laws—those blind to the message being conveyed—earn more judicial breathing room because they don’t put the government’s thumb on the scale of public discourse. This is not a technicality; whether a regulation is content-based is the first question any court asks in a First Amendment case, and the answer often writes the conclusion before the analysis even begins. The content-based distinction is what keeps government from appointing itself the ultimate editor of American discourse, deciding what speech is safe, what speech is suspect, and ultimately, what speech survives.
But courts cannot referee effectively when the rules of the game are unclear. The “secondary effects” doctrine articulated in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and the broader “content-neutral justification” rule announced by Hill v. Colorado, 530 U.S. 703 (2000), allow governments to recharacterize content-based distinctions as merely incidental to content-neutral purposes. Reed, on the other hand, establishes a clear, administrable rule that gives full effect to the First Amendment: laws that regulate speech based on its content are subject to strict scrutiny, regardless of the government’s benign motive or content-neutral justification. 576 U.S.at 163–64.
In this case, Georgia enacted a tax that, by any measure, is content-based. It specifically targets establishments based on expressive performances, the content of which must be evaluated in order to determine the applicability of the tax.  Ga. Code Ann. §§ 15-21-209, -201(1)(A). To enforce the tax, government officers must examine whether dancing is nude, whether movements are sexual in nature, and whether these elements constitute “entertainment”—making the tax inherently content-based rather than content-neutral, like laws against public nudity alone.
Yet the Georgia Supreme Court assumed that under Renton intermediate scrutiny applied, and upheld the law after deciding the “purpose” of the tax was to address the “undesirable secondary effects” of the content at issue. Georgia Ass’n of Club Executives, Inc. v. State, 320 Ga. 381, 389 (2024). Other lower courts have felt similarly bound by Renton, or have extended both Renton and Hill beyond their original contexts, even when Reed would seem to stand in the way.
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. This case offers an ideal vehicle for the Court to do so.
Argument
I. The Content-Based/Content-Neutral Distinction is the Most Important Inquiry in Protecting Free Expression
The First Amendment, “[p]remised on mistrust of governmental power,” stands as a bulwark against “attempts to disfavor certain subjects or viewpoints.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). And “as
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