The Volokh Conspiracy
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films, still pictures, electronic reproductions, or other visual reproductions depicting:
(i) Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law.
(ii) Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals.
(iii) Scenes wherein a person displays the vulva or the anus or the genitals.
(iv) Scenes wherein artificial devices or inanimate objects are employed to portray any of the prohibited activities described in this section.
Last week, Meridian Cinemas filed a federal lawsuit challenging the Idaho action on First Amendment grounds. And the Idaho action is indeed unconstitutional:
1. A state may ban alcohol outright, or ban its sale for consumption in public places, or impose various content-neutral speech restrictions. But it can't impose restrictions that are based on the content of the licensee's speech (including other people's speech that the licensee exhibits), at least unless the speech is constitutionally unprotected, for instance because it fits under the First Amendment exception for "obscenity" (and "Fifty Shades of Grey" doesn't fit within that exception).
The U.S. Court of Appeals for the Ninth Circuit so held in LSO, Ltd. v. Stroh (2000) as to a nearly identical California statute. Idaho is in the Ninth Circuit, so Meridian Cinemas' federal court challenge to the statute would be governed by the LSO decision; but in any event, Supreme Court precedents more generally establish the same thing.
2. California v. LaRue (1972) did suggest that the Twenty-First Amendment (which repealed Prohibition but left states with authority to regulate alcohol) might carve out an exception from general First Amendment principles. But, as the LSO decision noted, 44 Liquormart, Inc. v. Rhode Island (1997) overruled that analysis.
Nude dancing can still be barred in places where alcohol is sold, because restrictions on public nudity, even where only willing adults gather, are now viewed as content-neutral (see Barnes v. Glen Theatre, Inc. (1991)). Laws that classify depictions based on whether they show nudity and sexual conduct remain content-based, and thus generally violate the First Amendment.
3. Ah, I'm sure you're all wondering right now, "But what about Younger abstention?" (Isn't everyone constantly wondering about that?) Younger v. Harris holds that federal courts should generally not step in to block pending judicial proceedings; any constitutional challenges would need to be raised in the state court system, since state courts, like federal courts, are obligated to apply the First Amendment. And under the Middlesex twist on Younger abstention, the same abstention principle generally applies to quasi-judicial license revocation proceedings. (Query: If the liquor license revocation stemmed from the theater's showing a hypothetical movie based on Middlesex, would Middlesex abstention apply?) Indeed, Baffert v. California Horse Racing Bd. (9th Cir. 2003), holds that federal courts should abstain from interfering with pending horse-race license revocation proceedings—presumably the same would apply to liquor license revocation proceedings.
But a state may waive reliance on Younger abstention, and agree to have the federal court hear the challenge to a state administrative proceeding. Meridian Theaters' complaint suggests that the state indeed so agrees. ("Government Defendants … agreed to stay the administrative proceeding … until the federal lawsuit … is resolved.") If that's indeed so, then the federal court will indeed hear the case, and block the revocation proceeding; otherwise, the First Amendment argument would have to be raised in the state proceeding, and then, if necessary, in the state court appeal from that proceeding.
Thanks to the Media Law Resource Center's MediaLawDaily for the pointer.