Cert Petition in Georgia Adult-Entertainment Tax Case: Part 1

The Supreme Court should reverse the Georgia Supreme Court's judgment in Georgia Ass'n of Club Executives v. Georgia.

A couple of weeks ago, I filed a cert petition in Georgia Ass'n of Club Executives v. Georgia and Georgia Ass'n of Club Executives v. O'Connell. (For procedural reasons, these were  filed as two separate cases, but they raise identical issues, and the Georgia Supreme Court decided them in a combined opinion.)

Together with the team at Freed Grant LLC, we challenged a Georgia statute imposing a tax on adult entertainment establishments, a group of businesses defined in a content-discriminatory way, based on whether "[t]he entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation . . . ." Our position was that, as a content-discriminatory enactment, this tax should be evaluated under strict scrutiny—and should fail because the government could have raised the same amount of taxes in a non-content-discriminatory way, out of general revenues.

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.

Hopefully the Supreme Court will consider our cert petition sometime in March or April. I'm reprinting the main text of the introductory part of our cert petition below (some portions and citations omitted). 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.

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Question Presented

A Georgia statute imposes a tax that, on its face, singles out businesses defined by the content of their expression; the State seeks to justify the tax by the need to address "secondary effects." Is this tax subject to strict scrutiny under the First Amendment because it is facially content-discriminatory, as recently reaffirmed by Reed v. Town of Gilbert, 576 U.S. 155 (2015), or does a content-neutral rationale make the tax subject to intermediate scrutiny under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)?

Statutory Provisions Involved

Ga. Code Ann. § 15-21-201(1) provides, in relevant part:

(1)    "Adult entertainment establishment" means any place of business or commercial establishment where alcoholic beverages of any kind are sold, possessed, or consumed wherein:

(A)   The entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation . . . .

Ga. Code Ann. § 15-21-209 provides, in relevant part:

(a)    By April 30 of each calendar year, each adult entertainment establishment shall pay to the commissioner of revenue a state operation assessment equal to the greater of 1 percent of the previous calendar year's gross revenue or $5,000.00. This state assessment shall be in addition to any other fees and assessments required by the county or municipality authorizing the operation of an adult entertainment business. . . .

(c)    The assessments collected pursuant to this Code section shall be remitted to the Safe Harbor for Sexually Exploited Children Fund Commission, to be deposited into the Safe Harbor for Sexually Exploited Children Fund.

Statement

This Court has long held that content-discriminatory (i.e., content-based) governmental enactments must satisfy strict scrutiny; a content-neutral justification cannot transform a facially content-discriminatory enactment into a content-neutral one. This principle goes back several decades. See, e.g., Arkansas Writers' Project v. Ragland, 481 U.S. 221 (1987); Simon & Schuster v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). And this Court has recently strongly reaffirmed this principle. See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); Barr v. Am. Ass'n of Polit. Consultants, 591 U.S. 610, 618 (2020) (plurality opinion) [hereinafter AAPC].

However, in other cases, this Court has stated that even a facially content-discriminatory regulation can be treated as a content-neutral "time, place, and manner restriction" and evaluated under intermediate scrutiny, so long as it is justified without reference to content. This rule has been stated in the context of adult entertainment, where the government's claimed justification has been the need to combat "secondary effects." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). But this "content-neutral justification" rule has since grown to be applied in very different areas—for instance, the regulation of sound amplification in a municipal park, see Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), and abortion-clinic buffer zones, see Hill v. Colorado, 530 U.S. 703, 719 (2000).

And this Court has assumed the validity of the content-neutral justification rule in even more areas—the regulation of political protests near foreign embassies, see Boos v. Barry, 485 U.S. 312, 320 (1988), the regulation of the display of symbols that arouse anger based on factors such as race, see R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992), and the regulation of newsracks, see City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430 (1993). In some of these cases, the precise doctrinal statement has not made a difference (the regulation in Ward, for instance, would have been content neutral under any standard), but in other cases (such as City of Renton and Hill), the reliance on the content-neutral justification theory made a real difference to the bottom line.

These two lines of doctrine are inconsistent. Or, at least, they are in substantial tension with each other. Perhaps each doctrine is valid within its own domain—but it is unclear what these domains are. Clearly, the content-neutral justification rule is not limited to the handful of assorted areas where those cases arose, including adult entertainment and abortion-clinic buffer zones. Nor is that framework always used for all cases within those areas. In United States v. Playboy Entertainment Group, 529 U.S. 803 (2000), this Court applied strict scrutiny in an adult-entertainment context. And in McCullen v. Coakley, 573 U.S. 464 (2014), this Court applied intermediate scrutiny in an abortion-clinic buffer-zone context without relying on the City of Renton/Hill reasoning, endorsing the facial approach that it would later strongly restate in Reed. Id. at 479-81.

The City of Renton framework was developed in a zoning and land-use context, and its rationale has been closely tied to the justifications for zoning and land-use regulation; indeed, this Court has described City of Renton and its progeny as "[o]ur zoning cases." Playboy, 529 U.S. at 815. And yet, lower courts—including the Georgia Supreme Court in this case, and the Texas Supreme Court in a similar case, Combs v. Tex. Entm't Ass'n, 347 S.W.3d 277, 286 (Tex. 2011)—have extended the content-neutral justification rule, even after Reed. These courts have applied City of Renton to facially content-discriminatory taxes, even though there is no precedent from this Court for extending the City of Renton/Hill doctrine that far. There has also been confusion among lower courts about the fate of City of Renton after Reed. Some have assumed that City of Renton is still good law; others have held that some of their pre-Reed case law that relied on City of Renton has been abrogated.

This Court should grant certiorari in this case to resolve this confusion among lower courts and to prevent courts from diluting the Reed doctrine by an unjustified expansion of City of Renton/Hill analysis. This case presents the content-neutral justification reasoning cleanly, without any of the vehicle problems that may have led this Court to deny certiorari in recent cases that presented the issue in the context of abortion-clinic buffer zones, like Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (mem.) (denying certiorari), Vitagliano v. County of Westchester, 144 S. Ct. 486 (2023) (mem.) (denying certiorari), and Reilly v. Harrisburg, 144 S. Ct. 1002 (mem.) (2024) (denying certiorari). See Bruni, 141 S. Ct. at 578 (Thomas, J., respecting denial of certiorari) ("[T]he Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents" between the Reed/McCullen and Hill frameworks).

There are at least three ways that this Court could clarify the doctrine.

First, this Court could overrule City of Renton/Hill intermediate scrutiny as being inconsistent with the Reed rule of strict scrutiny. After all, this Court has already stated that Hill is a "distort[ion]" of "First Amendment doctrines," Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 287 & n.65 (2022), and the Hill problem extends to City of Renton and other cases as well. As some of this Court's Justices have noted, this Court's intervening decisions have "all but interred" Hill, rendering it "an aberration in [the Court's] case law." City of Austin, 596 U.S. at 91-92, 103-04 (2022) (Thomas, J., joined by Gorsuch & Barrett, JJ., dissenting); Bruni, 141 S. Ct. at 578 (Thomas, J., respecting denial of certiorari) (noting that the Court's use of intermediate scrutiny in Hill "is incompatible with current First Amendment doctrine" (quoting Price v. City of Chicago, 915 F.3d 1107, 1117 (7th Cir. 2019))).

Moreover, Hill has been criticized ever since it was decided, even by commentators who support abortion rights. See, e.g., Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. Cal. L. Rev. 49, 59 (2000); Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001). Much of the critique of the Hill reasoning is a critique of the entire content-neutral justification rule; this case would thus allow this Court to clarify that strict scrutiny is the rule in all these diverse areas.

Second, this Court could clarify that the City of Renton reasoning is strictly limited to the zoning and land-use context in which it arose. The City of Renton reasoning would thus no longer be available to support regulations that have nothing to do with land use (such as abortion-clinic buffer zones), and certainly would not be available to support non-regulatory enactments, such as the tax at issue in this case.

Third, this Court could clarify that, however far the City of Renton reasoning extends, it certainly does not apply to taxation. This option would retain the City of Renton reasoning for regulatory cases of various kinds (perhaps including buffer zones), but would prevent the expansion of the secondary effects doctrine to taxation—an expansion that would be inconsistent with cases like Arkansas Writers' Project and that could substantially undo the Reed rule of strict scrutiny.

Either way, this Court has been right to stress the general rule that content discrimination is highly suspect and that strict scrutiny is the norm in such cases, even when the government asserts content-neutral justifications. "The vice of content-based legislation—what renders it deserving of the high standard of strict scrutiny—is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes." Madsen v. Women's Health Center, Inc., 512 U.S. 753, 794 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part). The City of Renton/Hill exception should not continue to expand to erode or swallow up this salutary rule.

1. The State Operation Assessment

In 2015, the Georgia Legislature passed a tax—labeled a "state operation assessment"—on "adult entertainment establishment[s]." Ga. Code Ann. §§ 15-21-209, -201(1)(A). The purpose of the tax was to fund the Safe Harbor for Sexually Exploited Children Fund ("Safe Harbor Fund"), the primary purpose of which "is to disburse money to provide care and rehabilitative and social services for sexually exploited children." Id. § 15-21-202(c).

The category of "[a]dult entertainment establishment" was defined, in part, in a way that facially discriminates based on content: an establishment could qualify by having "entertainment" that "consists of nude or substantially nude persons . . . engaged in movements of a sexual nature" or simulating specified sexual activities. Id. § 15-21-201(1)(A).

2. The Georgia Trial Court Opinion

Petitioner Georgia Association of Club Executives, an organization of adult entertainment clubs in Georgia, sued to enjoin the collection of the tax. After some initial litigation, petitioner filed new complaints in the Georgia trial court against the State of Georgia and the Commissioner of the Georgia Department of Revenue (now Frank O'Connell), arguing that the tax violated the First Amendment. The cases against the State of Georgia and against Revenue Commissioner O'Connell were separate but raised substantively identical issues.

First, petitioner argued that the tax was content discriminatory and therefore had to be evaluated under strict scrutiny. Petitioner conceded that the State's interest, fighting child sexual exploitation, was compelling. But the tax could not satisfy strict scrutiny because there existed a less discriminatory alternative: funding the Safe Harbor Fund out of general revenues. The tax did not fall within the City of Renton exception. The City of Renton secondary effects doctrine has always been a limited exception to the general rule that content-discriminatory enactments are subject to strict scrutiny; and City of Renton, which was developed in a land use and zoning context, does not apply to taxes.

Next, petitioner argued that even if the tax were evaluated under intermediate scrutiny, it would still fail, because it would still have to be "narrowly tailored to serve a significant governmental interest." See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94 (1984). In the intermediate scrutiny context, narrow tailoring merely requires that an enactment "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Ward, 491 U.S. at 799 (internal quotation marks omitted). But the only interest ever asserted by the State was to raise revenue to fund the programs that fell within the purpose of the Safe Harbor Fund. And, because that interest would be served just as effectively if the money were raised from general revenues, the tax failed narrow tailoring even in the context of intermediate scrutiny. Moreover, petitioner argued, the tax failed intermediate scrutiny for the additional reason that the evidence relied on by the Legislature was woefully insufficient to establish a rational connection between adult entertainment establishments and child sexual exploitation.

Finally, petitioner raised an overbreadth challenge.

In the case against Revenue Commissioner O'Connell, the Georgia trial court (adopting verbatim respondents' proposed order) upheld the tax, ruling that strict scrutiny did not apply, that the tax satisfied intermediate scrutiny, and that the tax was not overbroad. In the (substantively identical) case against the State of Georgia, the Georgia trial court incorporated all of its legal reasoning from the case against the Commissioner.

3. The Georgia Supreme Court Opinion

Petitioner appealed both cases to the Georgia Supreme Court. In a combined opinion, the Georgia Supreme Court affirmed the trial court by a vote of 7-1.

First, the court held, relying on City of Renton, that the tax was content neutral because it was aimed at the suppression of secondary effects, and that it was therefore not subject to strict scrutiny.

Second, the court assumed that the tax was subject to intermediate scrutiny and held that it met that standard. Though the State had only asserted a bare revenue-raising interest, the court recharacterized the State's interest, asserting that "implicit within the State's interest is an element of seeking not to burden taxpayers in general with the costs of remedying the harm that the adult entertainment industry causes." That interest was "important" within the meaning of intermediate scrutiny. And, the court said, deferring to the State's empirical studies, the tax furthered that interest. The State's interest was unrelated to suppressing free expression. And the tax's burden on expression was incidental and promoted the State's interest (as recharacterized) more effectively than if the money came from general revenues.

Third, the court held that the tax was not overbroad.

Justice Warren dissented. She agreed with the majority that the tax should be considered content neutral in light of City of Renton, and she wrote that the tax should thus be analyzed under intermediate scrutiny. But she disagreed with the majority on how to characterize the State's interest. She argued that the State's interest was merely raising revenue; the State's supposed interest in targeting the tax at the industry responsible for the secondary effects was not one that it had ever argued. In her view, this recharacterization "undermine[d] . . . the four-prong test [of United States v. O'Brien, 391 U.S. 367 (1968)] and create[d] potential work-arounds for government entities to target protected expression." When the State's interest was properly viewed as the interest in raising revenue, it failed narrow tailoring because of the availability of generally applicable taxes.

The Georgia Supreme Court denied reconsideration in the two cases.

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Well, that's the introductory material from the cert petition—read the whole thing.

Comments

[not guilty]

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), which treated a zoning ordinance applicable exclusively to "adult motion picture theaters" as being content neutral, is one of the most intellectually dishonest decisions in American jurisprudence.

[gormadoc]

The 1A should only cover pornographic entertainment extent at the time it was written: paintings and sketches of too-young peasant girls in poor countries by creepy Frenchmen. The Founders could not anticipate the immense destructive power of modern pornography.

[A Woman of No Importance]

I would argue the internet has done an awful lot of damage, but it's still protected by the First Amendment. Think of all the school shootings that could be avoided if not for that pesky Second Amendment. And of course guilty criminals walk all the time because of the Fourth, Fifth and Sixth Amendments.

It is an unfortunate fact of life that a lot of basic rights cause lots of collateral damage. But if you're going to ban pornography, may as well be consistent and ban guns, search warrant requirements and the right against self incrimination too.

[Stupid Government Tricks]

Think of all the gun-free zone shootings that could have been prevented if government had not stripped the public of their right to keep and bear arms.

It is an unfortunate fact that too many people think rights are dangerous and must be diluted by the wisdom of government bureaucrats.

[A Woman of No Importance]

Is there any actual evidence that having gun free zones has increased the number of shootings? I'd like to see some hard data, as opposed to libertarian speculation about how they think things ought to work, before I commit.

Rights *are* dangerous, but that's not the point; not having rights is even more dangerous, and sometimes it's a case of pick your poison. Sure, the ready availability of pornography has damaged a lot of lives, but allowing the government to decide what I can read would be even worse.

But the choices aren't limited to either no regulation at all or complete government control. That's a false alternative. There is a middle ground of reasonable regulation, in which adult porn for consumption by other adults is outside the scope of government regulation, but child porn isn't. And that applies to guns too. No regulation at all versus complete confiscation aren't the only two choices, despite what some absolutists keep trying to tell us.

[Stupid Government Tricks]

When 90+% of shootings occur in gun-free zones? Sure, correlation is not causation, but coincidences which recur over and over just might not be coincidental.

[A Woman of No Importance]

Do you have a citation for the claim that 90% of shootings occur in gun free zones? There haven't always been gun free zones; where did most shootings take place before that? Have the number of shootings gone up, down, or stayed the same since we started to have gun free zones? Are there factors other than gun free zones that might explain the numbers?

You remind me of the old story about the drunk who woke up every morning with a hangover. He decided to figure out what was causing his hangovers so he started to keep track of his drinking. At the end of the first week his list looked like this:

Monday, vodka and soda, hangover
Tuesday, whiskey and soda, hangover
Wednesday, rum and soda, hangover
Thursday, scotch and soda, hangover
Friday, vermouth and soda, hangover

Conclusion: Soda causes hangovers.
Your conclusion: Gun free zones cause shootings.

[Stupid Government Tricks]

If that made any sense, you could bottle and sell it.

There have been plenty of studies over the years comparing school shootings themselves, and public mass killings in general. No, I don't keep links to them, and no, I am not going to do google searches for you. If you don't want to believe reality, it's no skin off my back. If you think I'm a liar, that's no skin off my back either, you'd just be another statist refusing to believe anything which disparages government wisdom.

[A Woman of No Importance]

That you assert that something is reality does not make it so. If there's actual data supporting your position I'd be happy to take a look at it.

I used to be a libertarian; one of the things that soured me on it (there were others) was just how frequently the libertarian view of how the world should operate simply did not jive with the reality on the ground. It's easy to make assumptions about how Cause X should, in your mind, produce Effect Y. But then when one looks at empirical data, a lot of the time those aren't the results at all.

Bonus question for you: Which logical fallacy is "if that made any sense, you could bottle it and sell it"?

[gormadoc]

I thought it was obvious but this was a sarcastic jab at similar arguments against the 2A.

[not guilty]

"The 1A should only cover pornographic entertainment extent at the time it was written: paintings and sketches of too-young peasant girls in poor countries by creepy Frenchmen. The Founders could not anticipate the immense destructive power of modern pornography."

I haven't counted, but how many sex scenes does the book of Genesis describe? These include rape, incest, polyamory, shtupping the wives' handmaids, prostitution, a wife pimping her husband to her (literal) sister wife and drunken debauchery. Perhaps the stories could be made into a pornographic movie, with Onan doing the ejaculation scenes.

[Dr. Ed 2]

("Safe Harbor Fund"), the primary purpose of which "is to disburse money to provide care and rehabilitative and social services for sexually exploited children.

Right....

[Bob from Ohio]

If you or the law school are getting paid, just make sure you clean the cash before putting in your wallet!

[CJColucci]

I'm on your side for all the wrong reasons.

[Bubba Jones]

Adult Entertainment Ass'n. heh.

[ReaderY]

I think City of Renton establishes “adult entertainment” as a sui generis category occupying a middle position to being fully within and fully outside the First Anendment. States can’t ban it, but they can tightly regulate it.

I think the Renton framework dooms Professor S. Volokh’s clients’ position. If negative secondary side effects justify discriminatory zoning, why not ouldn’t they equally justify discriminatory taxation? After all, secondary side effects impose costs on the public. Why not tax the sources of those costs to help defray them?

The plaintiffs are clearly seeking to overturn the general reasoning of Renton, although they propose distinguishing it and limiting it to its facts rather than overturning it.

Given that essentially anything that it is today considered “adult entertainment” would have been unquestionably bannable as obscene under any originalist conception of what “obscene” means, one could just as easily argue that Renton’s approach, allowing it under restrictions, represents a holdover of liberal rejection of originalist approaches, and an originalist court ought to overturn Renton in favor of an originalist approach to First Amendment interpretation, by going back to declaring it outside the First Amendment entirely and letting a locality regulate it however it wants.

While I agree the reasoning behind Renton was something of a messy compromise, it seems to me that calling a spade a spade and recognizing intermediate categories in First Amendment analysis as what Renton really did would solve the problem. And if that isn’t done, and Renton is overturned, declaring the whole thing obscene and unprotected would be at least as legitimate from an originalist perspective as declaring the whole thing protected.

[Sasha Volokh]

Hi ReaderY, I invite you to read our cert petition!

(1) Unfortunately, City of Renton doesn't establish adult entertainment as a sui generis category. If it had said that, things would be easier! But there are cases about adult entertainment that don't use that framework (e.g. Playboy). And there are cases that use that framework that aren't about adult entertainment (e.g., Ward, Hill, and a bunch of others that we cite). So the domain of City of Renton is really unclear!

(2) If negative secondary effects could justify discriminatory zoning, why not taxation? Our cert petition gives five reasons, at pp. 25-29 of the cert petition (pp. 40-44 of the PDF). (a) The reasoning of City of Renton was very closely tied to physical proximity effects and deference to local governments' traditional zoning powers. (b) Zoning fits with the "time, place, and manner" category that's governed by intermediate scrutiny. (c) Other First Amendment cases take a hard line against discriminatory taxation. (d) Other First Amendment cases take a hard line on the permissibility of permitting fees. (e) If the government interest is just raising revenue (which is the only interest that the government argued in this case), then targeted taxes don't pursue that interest better than getting the money from general revenues; that's different than zoning and similar regulation, where the targeting generally makes the regulation more effective.

(3) So yes, we are advocating overruling City of Renton, but we also have solid arguments for distinguishing City of Renton when it comes to taxes.

(4) Indeed, an originalist perspective might not be very friendly toward adult entertainment — that's why this petition is not in any way originalist, and if the Court is going to rethink First Amendment law on originalist grounds, I hope they don't choose this case to do that!