In its decision last week in Showtime Entertainment, LLC v. Town of Mendon, the Supreme Judicial Court (SJC) struck down a Town of Mendon bylaw banning alcohol at “adult entertainment businesses.”  This is the latest case to grapple with the tension that often arises between a municipality’s exercise of its police powers and citizens’ exercise of their First Amendment rights.  While the result of the decision is to invalidate the offending bylaw, the court offers suggestions for how the town can revise its bylaw to pass constitutional muster.

In 2008, Mendon created an adult entertainment overlay zoning district.  In short order the plaintiff, Showtime, applied for a license to operate a strip club in the new district.  While that application was pending, a citizen group calling itself “Speak Out Mendon” petitioned the board of selectmen to enact bylaws strictly regulating adult businesses, including by forbidding the sale of alcohol at such business.  The group cited two studies suggesting that the presence of alcohol near “sex-oriented businesses” causes an increase in crime.  Showtime’s application was denied and, days later at a special town meeting, Mendon adopted the proposed new bylaws.  Showtime applied for a license under the new regime, and this time its application was granted.  License in hand, Showtime promptly filed suit in federal court challenging the new bylaws − particularly the alcohol ban − as unlawful restrictions on the constitutionally protected “expressive activity” of nude dancing.

The U.S. District Court ruled in Mendon’s favor and Showtime appealed.  The First Circuit then certified two questions to the SJC:  (1) do the pre-enactment studies considered by the town establish a “countervailing state interest” justifying the alcohol ban; and (2) if the ban is so justified, is it adequately tailored to minimize any infringement on First Amendment rights?

On the first question the SJC sided with the town, ruling that the studies cited by Speak Out Mendon were sufficient to establish the town’s “countervailing interest” in controlling the “explosive combination” of nude dancing and alcohol.  The court acknowledged that regulating such activity is “inevitably intertwined with the right of free speech,” and trotted out this nifty quote from one of its prior decisions:

the artistic preferences and prurient interests of the vulgar are entitled to no less protection than those of the exquisite and sensitive esthete.

Nonetheless, the SJC rejected Showtime’s challenge to the studies on which the town relied.  The court held that the town’s countervailing interest “need not be perfectly demonstrated.”  Rather, “the evidence before the municipality must lead to the reasonable conclusion that a countervailing State interest exists in fact.”  Though both studies concerned cities in California (one being Los Angeles), and only one study considered the role of alcohol in exacerbating the negative effects of sex-oriented business, the SJC found the studies sufficient (if barely so) to establish the town’s interest, and faulted Showtime for failing to present affirmative evidence to rebut them.

It was the First Circuit’s second question that scuttled Mendon’s bylaw.  The SJC ruled that the bylaw is not sufficiently tailored, and therefore impermissibly infringes on Showtime’s First Amendment rights.  The applicable standard requires that the challenged regulation “focuses on the evils the [town] seeks to eliminate . . . and eliminates them without at the same time banning or significantly restricting a substantial quantity speech that does not create the same evils.”  The SJC found that by banning alcohol at any establishment in the overlay district that displays live nudity, Mendon’s bylaw is broader than necessary.  The court noted that, in addition to strip clubs, the bylaw would ban alcohol at a (hypothetical) theatre showing “the rock musical ‘Hair,’ the play ‘Equus,’ and Richard Strauss’ opera ‘Salome’ and Oscar Wilde’s play of the same name.”  In the court’s view, the bylaw’s blanket ban on alcohol “is not the logical response” to the town’s belief that alcohol at adult businesses increases crime.  Rather, the town “must seek other, narrower means to pursue its goal of crime prevention.”  In this regard, the court suggested that the town might permissibly further its “countervailing interest” through increased security requirements, or by limiting (as opposed to completely banning) alcohol consumption.

Given this ruling, I expect Mendon is already at hard work on a revised bylaw, and Showtime is gearing up for the next round in this battle.  We’ll keep you posted.