Paycheck Protection Program Exclusion of Nude Dancing Establishments Upheld

The Second Circuit held that this was a permissible viewpoint-neutral restriction on a subsidy program.

The Paycheck Protection Program "authorize[s] the Small Business Administration … to
guarantee favorable loans to certain businesses affected by the COVID-19 pandemic," but the program excludes "businesses presenting 'live performances of a prurient sexual nature.'" Not a First Amendment violation, the Second Circuit held yesterday in Pharaohs GC, Inc. v. U.S. Small Business Administration (written by Judge Michael Park, joined by Judge Raymond Lohier and District Judge Jed Rakoff). Government subsidies, the court held, could include viewpoint-neutral restrictions on which First Amendment activities are subsidized, and the exclusion of "prurient" "live performances" is viewpoint-neutral:

The word "prurient" operates in the SBA's regulation to describe the subject matter—or content—of businesses excluded from SBA loans. Businesses that present live performances are excluded if the nature of those performances is prurient. The restriction does not describe a viewpoint; one could not have a prurient view of American policy in the Middle East or antitrust regulation, for example. Indeed, the Supreme Court has treated prurience as a content-based restriction, suggesting in dicta [in R.A.V. v. City of St. Paul (1992)] that "prurience and patent offensiveness are … permissible grounds on which to discriminate—and by implication, they do not constitute 'viewpoints.'"

Thanks to Prof. George Wright for the pointer.

UPDATE: Whoops; I erroneously wrote at first, "Government subsidies, the court held, could include viewpoint-based restrictions on which First Amendment activities are subsidized, and the exclusion of 'prurient' 'live performances' is viewpoint-neutral," which of course makes no sense; I meant to write, "could include viewpoint-neutral restrictions."  Thanks to Leo Marvin for pointing this out to me; I just fixed this.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How could "prurient" possibly be viewpoint-neutral? The mere fact that these establishments exist and make money shows they are not universally considered prurient.

[Life of Brian]

Indeed. Every definition I've pulled up so far contains a subjective term of degree (i.e., "too much" or an "inordinate" interest in sex).

[Rossami]

Yeah, that interpretation seems implausible to me, too. Especially since the "dicta" they cite (from R.A.V. v. City of St. Paul) was in a case that overturned the conviction of a cross-burner. I'm having trouble seeing how it's anything but viewpoint discrimination to say we can't ban cross-burnings but we can ban lap dances.

[Krychek_2]

They're not saying we can ban lap dances. They're saying the government won't subsidize lap dances. Kind of like abortion.

That said, I agree with everyone else here that it's hard to square this decision with the First Amendment.

[Rossami]

"won't subsidize" is more defensible - or was until [shoot, can't remember the case name - a church that wanted the same subsidies as secular organizations for playground mulch]. Though arguably the church's claims were about violation of a different clause in the First Amendment.

[Dilan Esper]

Yeah, I tweeted about this. On the one hand, I get it. Judges don't want to rule that the federal government has to subsidize strip clubs.

But if you are actually honestly applying the Supreme Court's precedents on imposing financial disabilities on speech because of its content, it seems quite wrong.

[CJColucci]

Really? I go to such places precisely because they're prurient.

[Krayt]

Thank you.

The mere fact that these establishments exist and make money shows they are not universally considered prurient.

The mere fact that these establishments exist and make money shows they are universally considered prurient.

We shouldn't rely on strained non-prurience claims as justification for these to exist against laws banning it. Rather simply rely on freedom of adult sexuality. Then we don't have wrench the First Amendment around.

Now if you want to say sexual titillation is a form of communication, and is protected, sure.

[Estragon]

I invite you to visit the great state of oregon, where the state supremes have so decided!

[Martinned]

Not all stupid policies are unconstitutional...

[MatthewSlyfield]

Not all stupid policies (are there any other kind at the federal level?) are constitutional.

[DaivdBehar]

Is the human body obscene to the cultural Commie? Is fornication for family formation against policy? The patriarchal family is a competitor to big government as a soure of moral authority. So it must be crushed by the legal profession. Of course, it is 100 times more effective than the lawyer profession at getting people to obey the rules. Thus the family has to be destroyed by the lawyer profession. It is under attack from all directions. The rate of bastardy in whites was 40% in the 2010 Census. It is likely to be far higher in the 2020 Census. Good job, lawyers, destroying the white family.

[Krychek_2]

Just out of curiosity, is there any social problem for which you don't blame the "lawyer profession"? The common cold? Cancer? The weather?

[Krayt]

Lawsuits and other hot air by politicians lead to the FDA, which is needlessly overprotective and slowing to the development of treatments, including cancer.

We've seen this with COVID, with nursing drug approvals quickly through the system, the way an overnight novelty new house construction might, with a government inspector in a sleeping bag to keep things moving, has lopped 6 months off an already vastly accelerated program and red tape cutting.

So, yes, lawyers have a finger in increasing cancer death rates.

[Bwaaah]

Nobody was fighting "the patriarchal family." Nobody was trying to advance "the legal profession." Nobody was advancing any of those things, any more than trying to advance "white supremacy," or "American hegemony," or "subjugation of women," or "keeping poor people down."

Everybody was just trying to make a buck. (Everybody, except the intellectuals, whose only currency is self-stroking storytelling that places the world as his/her actors in a grand conspiratorial play of good vs. evil.)

Sheesh. Try to find a problem closer to home. (Isn't there a piece of litter outside your door that maybe you can pick up?)

[great Unknown]

"Government subsidies, the court held, could include viewpoint-based restrictions on which First Amendment activities are subsidized...." Should that be content-based restrictions?

What about a government program that subsidizes political discussion - but excludes content such as libertarianism, pro-life positions, questioning election integrity, criticizing the FDA and the CCD - in other words, going full Twitter? Under this ruling, would that be acceptable? There is a legitimate government interest in such exclusions - maintaining power.

In any case, how does this comport with Matal v Tam?

[Dr. Ed 2]

I was wondering about Matal v. Tam myself.

Also about non-prurient dancing, e.g. ballet?
Unless it is a blanket ban on *all* dancing (including ballet, ice capades, etc.) then why wouldn't it be content based?

[Eugene Volokh]

Fixed, sorry -- yes, it should be "viewpoint-neutral restrictions"; I've fixed it. Matal v. Tam involved a viewpoint-based restriction.

[ReaderY]

Would a murder statute that prohibits acting “with malice aforethought” be unconstitutional viewpoint discrimination?

After all, the working professionals in both businesses, who are probably just out to make a buck, would probably have a different viewpoint about their respective fields in both cases than the government. The professional contract killer, like the professional government-sanctioned soldier, would probably say he bears no malice towards the person he kills, he’s just there to do a job, and this whole “malice” business imposes the viewpoint of outsiders to the profession.

[DaivdBehar]

That involves mens rea, and violates the Establichment Clause. Even the Medieval Church, in accordance with their faith, said God would judge intent whe he received the soul. The Church did not believe man could read minds. Only the dumbass lawyer does.

Who is safer to society, the disciplined contract killer or the drunken hunter who shoots another thinking him a deer? One gets the death penalty, and one goes home to drive head on into a School Bus of kids on their way to hemophiliac camp.

All crime should be strict liability. Sentencing should be an executive function, with damages to future victims when a mistake is made.

[Flight-ER-Doc]

So, they're saying strippers gotta strip?

[Leo Marvin]

Government subsidies, the court held, could include viewpoint-based restrictions on which First Amendment activities are subsidized, and the exclusion of "prurient" "live performances" is viewpoint-neutral

This is probably a dumb question for reasons that flew over my head, but did you by any chance mean to say government subsidies can include content-based restrictions?

[Eugene Volokh]

Yes, sorry, fixed (meant to say "viewpoint-neutral restrictions").

[Paladin_44]

Reminds me of a time, many years ago, when I tried to hire a male stripper to crash a dinner party and sing "happy birthday" for a woman's birthday. The booking agency was very firm: "Our strippers do not sing, and our singers do not strip". I opted for the stripper who brought a portable radio and played "Happy Birthday".