Cert Petition in Georgia Adult-Entertainment Tax Case: Part 2

The rest of the cert petition in Georgia Ass'n of Club Executives v. Georgia

Yesterday, I blogged about the cert petition that I filed a couple of weeks ago in Georgia Ass'n of Club Executives v. Georgia and Georgia Ass'n of Club Executives v. O'Connell. That post reprinted the introductory part of the cert petition; here's the main body of the brief. Again, 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.

As I said yesterday, 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.

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Reasons for Granting the Petition

This Court should grant certiorari because the boundary between the Reed and City of Renton doctrines is unclear; lower courts, including the Georgia Supreme Court in this case, have been wrongly extending the City of Renton reasoning to areas where it does not apply.

Reed correctly reaffirmed the general rule that content-discriminatory governmental enactments are evaluated under strict scrutiny. But City of Renton stated that certain enactments, even if facially content discriminatory, can be evaluated under intermediate scrutiny if the government seeks to justify them by the need to combat secondary effects. Because the proper scope of the City of Renton exception has never been clarified, lower courts have disagreed on what previous case law survives Reed, and some lower courts have extended City of Renton into areas far afield from its original grounding in judicial deference to zoning and land-use regulation. This Court should resolve this important question of First Amendment law, either by overruling the City of Renton/Hill line of cases or by cabining the scope of the content-neutral justification rule, for instance by holding that this reasoning is limited to zoning and land-use regulation, or by holding that this reasoning does not apply to facially content-discriminatory taxes.

A. This Court's Recent Case Law Reaffirms the Traditional Rule on Content Discrimination and Strict Scrutiny.

1. Content-Discriminatory Government Action Is Subject to Strict Scrutiny.

Content-discriminatory (i.e., content-based) government action is subject to strict scrutiny. This principle has been established for decades. See Reed, 576 U.S. at 163; AAPC, 591 U.S. at 618 (plurality opinion); United States v. Playboy Entertainment Group, 529 U.S. 803, 813-15 (2000).

This is true whether or not "conduct" is involved: the intermediate-scrutiny test for expressive conduct associated with O'Brien applies only when state action is content neutral. See, e.g., Humanitarian Law Project, 561 U.S. at 27 ("O'Brien does not provide the applicable standard for reviewing a content-based regulation of speech . . . ."); see also Alexander Volokh, Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny, 2 J. Free Speech L. 627, 646 (2023). Even if the activity in this case were labeled as conduct, this Court's doctrine on content discrimination would still apply: "The law here may be described as directed at conduct, as the law in Cohen [v. California, 403 U.S. 15 (1971),] was directed at breaches of the peace, but as applied to [petitioner] the conduct triggering coverage under the statute consists of communicating a message." Humanitarian Law Project, 561 U.S. at 28.

This Court has used a simple approach to determine whether a law is content based: "a law is content-based if a regulation of speech on its face draws distinctions based on the message a speaker conveys. That description applies to a law that singles out specific subject matter for differential treatment." AAPC, 591 U.S. at 618-19 (plurality opinion) (internal quotation marks omitted). In AAPC, the law discriminated between robocalls on different topics, giving preferential treatment to robocalls made to collect government debt. "A robocall that says, 'Please pay your government debt' is legal. A robocall that says, 'Please donate to our political campaign' is illegal. That is about as content-based as it gets. Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech." Id. at 619; see also id. at 649 (Gorsuch, J., concurring in the judgment in part and dissenting in part). All nine Justices agreed that the law was content based, though a minority disagreed regarding whether strict scrutiny should be required. See id. at 639 (Breyer, J., concurring in the judgment in part and dissenting in part); see also id. at 636 (Sotomayor, J., concurring in the judgment).

This Court had already endorsed this approach in Reed, a case about a sign code treating political signs differently than other signs. "The Town's Sign Code," the Court wrote, "is content based on its face. . . . The restrictions in the Sign Code that apply to any given sign . . . depend entirely on the communicative content of the sign." Reed, 576 U.S. at 164.

And this facial approach is rooted in long-standing precedent going back several decades. See, e.g., Humanitarian Law Project, 561 U.S. at 27 ("Plaintiffs want to speak to [various organizations], and whether they may do so under [the statute] depends on what they say."); Simon & Schuster, 502 U.S. at 115-16 ("The Son of Sam law . . . singles out income derived from expressive activity for a burden the State places on no other income, and it is directed only at works with a specified content."); Ark. Writers' Project, 481 U.S. at 229 ("[T]he basis on which Arkansas differentiates between magazines is particularly repugnant to First Amendment principles: a magazine's tax status depends entirely on its content."); Regan v. Time, 468 U.S. 641, 648 (1984) ("A determination concerning the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers."); see also Volokh, supra, at 641-43.

2. The Tax Here Is Content Discriminatory.

The tax here is content discriminatory because it taxes establishments defined by their expression.

First, an establishment can become subject to the tax by having "nude or substantially nude persons dancing." Second, an establishment can become subject to the tax by having "movements of a sexual nature"—and one cannot determine whether movements are sexual (or "simulat[e] sexual intercourse") without examining their content and inspecting their message. Third, an establishment can become subject to the tax by presenting all this as "entertainment"; the wording confirms that what is taxed is a performance before spectators. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter, J., concurring in the judgment) ("[S]uch performance dancing is inherently expressive . . . ."); see also Volokh, supra, at 643-46.

A revenue officer will have to inspect the "entertainment" to determine whether the subject matter is erotic. This is the very definition of "content based." (By contrast, merely appearing in public naked is "not an inherently expressive condition," see City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion), and so laws that merely depend on whether one is in public naked are content neutral and receive intermediate scrutiny. See Bushco v. Utah State Tax Comm'n, 225 P.3d 153, 160-61 (Utah 2009).)

To be sure, this Court's facial approach is not absolute; the mere fact that one must inspect content to see whether a law applies is not always enough to make that law content discriminatory. See City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022). But this Court's holding in City of Austin was narrow, and it does not affect Reed's facial approach in cases like this one.

In City of Austin, a sign code regulated off-premises advertising (i.e., advertising for things located on different premises than the sign) more heavily than on-premises advertising (i.e., advertising for things located on the same premises). This may seem content discriminatory because one can't tell whether a sign contains on-premises or off-premises advertising without reading it. But this Court nonetheless considered this sign code content neutral: "Unlike the sign code at issue in Reed," the code "[did] not single out any topic or subject matter for differential treatment." Id. at 71. The code's focus on a neutral factor like location made it different from codes turning on "[a] sign's substantive message," embodying, for instance, "content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations." Id.

Thus, even while it upheld that particular code, this Court reaffirmed in City of Austin that the facial approach still applies when a policy turns on substantive content or a specific subject matter. The Reed approach is thus unaffected in this case, where the tax depends precisely on the subject matter. See, e.g., Barnes, 501 U.S. at 570-71 (noting that nude dancing conveys an "erotic message"); City of Erie, 529 U.S. at 293, 296 (2000) (plurality opinion).

And, once one determines that the tax is content discriminatory and therefore receives strict scrutiny, it necessarily fails. Strict scrutiny requires the government to choose the least content-discriminatory means of pursuing its goal. But the government can always pursue its goal (here, raising revenue to fund programs that combat child sex trafficking) equally well by providing the same amount from general revenues.

3. Whether the Law's Justification Is Content Neutral Is Irrelevant.

But what if, despite facial discrimination based on content, the government seeks to justify the law using a content-neutral rationale? (I.e., what if the purpose of the content discrimination is to combat "secondary effects" unrelated to content?) Does that alter the result that the law is content discriminatory, lowering the level of scrutiny?

The general answer is easy: where (as here) the government has singled out particular content or subject matter, the neutrality of the justification is irrelevant. According to Reed:

On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. . . .

. . . A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech. . . . [I]llicit legislative intent is not the sine qua non of a violation of the First Amendment, and a party opposing the government need adduce no evidence of an improper censorial motive. Although a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary. . . . [A]n innocuous justification cannot transform a facially content-based law into one that is content neutral.

Reed, 576 U.S. at 164-66 (internal quotation marks, citations, and alterations omitted).

There are two exceptions to this general rule: First, there is the City of Austin exception, which, as discussed above, does not apply here. Second, there is the City of Renton/Hill content-neutral justification rule, which will be discussed in Part B infra. Apart from these two exceptions, the general irrelevance of neutral justifications is not some new invention. Countless First Amendment cases have stated this principle:

• In Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), a pre-City of Renton case, this Court applied strict scrutiny to strike down a prohibition on picketing near schools, with an exception for labor picketing—even though the government sought to justify its ordinance by reference to the neutral secondary effect of avoiding disruption of the school. at 98-102.
• In Simon & Schuster, the state was pursuing the neutral goal of ensuring that criminals didn't profit from their crimes, but this Court applied strict scrutiny to the content-discriminatory "Son of Sam" law. 502 U.S. at 118-21. (This Court noted, though, that the precise standard didn't much matter: even if the neutral goal could make the statute content neutral, the statute would still be unconstitutional because of its overinclusivity. at 122 n.*.)
• In Humanitarian Law Project, the government was pursuing the neutral goal of depriving terrorist organizations of resources, but this Court rejected intermediate scrutiny and applied "a more demanding standard." 561 U.S. at 28 (internal quotation marks omitted).
• In Arkansas Writers' Project—a case, like this one, involving a content-based tax—this Court applied strict scrutiny even though the state asserted neutral justifications like "encourag[ing] 'fledgling' publishers." 481 U.S. at 231-33.
• In City of Cincinnati, the government was pursuing the neutral goal of safety and aesthetics in regulating commercial newsracks, but this Court wasn't impressed by this neutral justification because the regulation was still facially discriminatory: despite the lack of "animus toward the ideas contained in those publications," "the very basis for the regulation [was] the difference in content between ordinary newspapers and commercial speech." 507 U.S. at 429. This Court didn't apply strict scrutiny in this case because of the commercial-speech context, at 416-28, but it still rejected the more lenient standard that would have applied if the regulation were truly content neutral.

See also Volokh, supra, at 651-56.

B. The Secondary Effects Doctrine Is a Limited Exception to This Rule.

But what about the "secondary effects" doctrine? In City of Renton, a zoning ordinance discriminated against adult movie theaters. This was, on its face, content discriminatory. And yet, the U.S. Supreme Court wrote, the ordinance was "aimed not at the content . . . but rather at the secondary effects of such theaters on the surrounding community," 475 U.S. at 47, and was therefore properly examined under the more lenient standard applicable to time, place, and manner regulations, i.e., intermediate scrutiny, id. at 49-50.

City of Renton's secondary effects doctrine is not an isolated phenomenon. This Court relied on the same content-neutral justification rule to uphold an abortion-clinic buffer zone in Hill, 530 U.S. at 719 (citing Ward, 491 U.S. at 791 (citing City of Renton, 475 U.S. at 47-48)), and in various other cases listed in Part B.1 infra. The theme running through these cases, from adult entertainment to abortion-clinic buffer zones, is that even a facially content-discriminatory enactment can be treated as if it were content neutral—and evaluated under intermediate scrutiny—if it is justified without reference to content.

The City of Renton/Hill doctrine—the content-neutral justification rule, of which the secondary effects doctrine is one example—is an exception to the general rule stated above. The domain of this doctrine is unclear; but whatever the precise boundaries of the doctrine, it has always been a limited exception.

1. The Proper Scope of City of Renton Remains Unclear.

It has long been clear that the Reed and City of Renton doctrines are inconsistent, or at least in substantial tension, with each other. Scholars have repeatedly noted this. See, e.g., Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 Sup. Ct. Rev. 233, 293; Leslie Gielow Jacobs, Making Sense of Secondary Effects Analysis After Reed v. Gilbert, 57 Santa Clara L. Rev. 385, 388-89 (2017); Anthony Lauriello, Panhandling Regulation After Reed v. Town of Gilbert, 116 Colum. L. Rev. 1105, 1140-41 (2016). So have lower-court judges. See Free Speech Coalition, Inc. v. Attorney General, 825 F.3d 149, 174 (3d Cir. 2016) (Rendell, J., dissenting) ("The secondary effects doctrine thus seems logically irreconcilable with Reed.").

Some courts have assumed that City of Renton is still good law after Reed. See, e.g., BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015); Maxim Cabaret, Inc. v. City of Sandy Springs, 816 S.E.2d 31, 36 n.4 (Ga. 2018); Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs, 703 F. App'x 929, 934–35 (11th Cir. 2017); Jacobs, supra, at 414-16. Other courts have decided that at least some of their prior case law—which had relied on City of Renton's content-neutral justification rule—had to be revisited in light of Reed. See, e.g., Free Speech Coalition, 825 F.3d at 161 n.9; Cahaly v. Larosa, 796 F.3d 399, 404-05 (4th Cir. 2015); Reagan Nat'l Advert. of Austin, Inc. v. City of Austin, 972 F.3d 696, 702-03 (5th Cir. 2020), rev'd on other grounds, 596 U.S. 61, 69 (2022); Int'l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 706 (6th Cir. 2020).

But even when a lower court recognizes that City of Renton has not been overruled and must therefore be applied within its proper domain, it is hard to tell when to apply Reed and when to apply City of Renton. The boundary between the Reed and City of Renton domains is unclear.

City of Renton does not apply every time a government identifies some secondary effect: that much is obvious from cases like Simon & Schuster, Humanitarian Law Project, and Arkansas Writers' Project, in all of which the government was pursuing some goal unrelated to speech. Indeed, applying it this way would substantially unravel the Reed doctrine: as Justice Brennan noted in Boos, the City of Renton analysis "creates a possible avenue for governmental censorship whenever censors can concoct 'secondary' rationalizations for regulating the content of political speech." 485 U.S. at 335 (Brennan, J., dissenting).

Nor is the domain of City of Renton coterminous with adult entertainment. First, City of Renton does not always apply when adult entertainment or pornography is at issue. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (involving virtual child pornography). And second, City of Renton has been applied even beyond the adult entertainment context:

• In Boos, a plurality distinguished City of Renton (thus assuming that it would otherwise apply) in analyzing a D.C. ordinance barring some forms of protest outside embassies, 485 U.S. at 320-21 (plurality opinion).
• In City of Cincinnati, 507 U.S. at 430, a majority likewise distinguished City of Renton in analyzing a city's policy against newsracks for commercial handbills.
• This Court cited City of Renton positively in R.A.V., 505 U.S. at 389, a case involving the display of symbols that arouse anger based on factors such as race.
• In Ward, 491 U.S. at 791, this Court relied on City of Renton to uphold the constitutionality of sound-amplification guidelines for a concert in a park.
• And in Hill, 530 U.S. at 719, this Court relied on the content-neutral justification principle, citing Ward, to uphold an abortion-clinic buffer zone.

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 Hill), the reliance on the content-neutral justification theory made a real difference to the bottom line. Some lower courts have mistakenly said that this Court has only ever applied City of Renton in the context of "regulations affecting physical purveyors of adult sexually explicit content," see Free Speech Coalition, 825 F.3d at 161, but this is incorrect: unfortunately, City of Renton's domain resists any easy characterization.

2. At the Very Least, City of Renton Does Not Apply to Taxation.

While this Court has never explained the precise scope of City of Renton secondary effects analysis, there are some guideposts. This Court has always applied the doctrine in a regulatory context, especially when traditional zoning or land-use considerations are at issue—when the regulation can fairly be characterized as a "time, place, or manner regulation." (Thus, City of Austin, where this Court characterized the "on-/off-premises distinction" as being "similar to ordinary time, place, or manner restrictions," 596 U.S. at 71, also arose in a land-use regulation context, i.e., sign codes.) This Court has never applied the City of Renton approach to taxes—and, in fact, Arkansas Writers' Project is a good example of the contrary, where this Court applied strict scrutiny to a content-discriminatory tax even though the government had asserted a content-neutral rationale. See Part A.3 supra.

It makes sense that the secondary effects doctrine is limited to, at most, regulation and licensing—but does not extend to taxation—for the following five reasons.

First, from its beginnings in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the secondary effects doctrine has been closely tied to zoning and land use. The plurality in that case upheld a zoning ordinance targeting adult theaters based on "the city's interest in preserving the character of its neighborhoods," id. at 71; "[i]t is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of 'offensive' speech," id. at 71 n.34. Justice Powell concurred, stating that local land-use regulation is special, because zoning is "the most essential function performed by local government": "I view [this] case as presenting an example of innovative land-use regulation, implicating First Amendment concerns only incidentally and to a limited extent." Id. at 73, 80 (Powell, J., concurring in part and concurring in the judgment) (internal quotation marks omitted).

When this Court officially adopted the secondary effects doctrine in City of Renton, the context was also a zoning ordinance targeting adult theaters, and the rationale was closely tied to land use. The case, this Court wrote, was "largely dictated" by American Mini Theatres, id. at 46, and the concerns discussed were ones related to "the vital governmental interests" in "attempting to preserve the quality of urban life," id. at 50 (internal quotation marks omitted). In stating the rule of law, this Court wrote: "in American Mini Theatres, a majority of this Court decided that, at least with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to 'content-neutral' time, place, and manner regulations." Id. at 49 (footnote omitted) (emphasis added).

Small wonder that this Court later described this line of precedent as "[o]ur zoning cases." Playboy, 529 U.S. at 815.

To be sure, this doctrine has been applied beyond zoning in the narrowest sense: in Ward, it was used to uphold municipal sound amplification guidelines. But this is still a closely related land-use regulation context. And even the abortion-clinic buffer zones at issue in Hill were regulatory.

Thus, the secondary effects doctrine was developed in a context of deference to local governments' traditional land-use authority, where the secondary effects were ones stemming from physical proximity. This is consistent with this Court's deferential attitude toward zoning, see, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

Second, zoning and other land-use regulations at least fit within the overarching rubric of "time, place, or manner regulations" (even if there may still be controversy over whether they are nonetheless unconstitutionally content discriminatory). In the context of the regulation of adult entertainment, City of Renton-type cases generally come down to the following: "Don't have nude dancing at these hours—have them at these other hours instead" (time); "Don't have nude dancing in this part of town—have it in this other part of town instead" (place); "Don't have entirely nude dancing—wear G-strings instead" (manner). By contrast, a tax cannot easily be described as a time, place, or manner regulation, because it does not prescribe when, where, or how to conduct any activities; it merely attaches a price to such activities. Taxation does not fit well with the theory of City of Renton.

Third, this Court has always taken a negative, bright-line attitude toward discriminatory taxation. As far back as McCulloch v. Maryland, the Court has not drawn lines between moderate and excessive taxation; it has reasoned instead that a tax, once allowed, can be increased without limit. See 17 U.S. (4 Wheat.) 316, 430-31 (1819). The same idea has been applied in First Amendment cases. For religious speech, a license tax is unconstitutional because it could become too "costly." Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943). For the press, even a small content-discriminatory tax is unconstitutional because of "the possibility of subsequent differentially more burdensome treatment." Minneapolis Star & Tribune Co. v. Minn. Comm'r of Rev., 460 U.S. 575, 588 (1983); cf. also Leathers v. Medlock, 499 U.S. 439, 447 (1991). Petitioner does not concede that this tax is small, but even if it were, that would be irrelevant. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) ("There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.").

Why can't one draw a constitutional line between moderate and excessive taxes? Perhaps because "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation." Minneapolis Star, 460 U.S. at 589. Or perhaps because the very idea of a discriminatory tax offends First Amendment values: "A tax based on the content of speech does not become more constitutional because it is a small tax." Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 136 (1992); see also Ark. Writers' Project, 481 U.S. at 229 (content-based taxes are "particularly repugnant to First Amendment principles"). Regardless, this treatment of taxation stands in sharp contrast to the "time, place, or manner" inquiry under which we ask whether regulations "do not unreasonably limit alternative avenues of communication," City of Renton, 475 U.S. at 47 (emphasis added). The bright-line treatment of taxation would be out of place in City of Renton's flexible balancing inquiry.

Fourth, a relatively permissive intermediate-scrutiny approach to content-based taxes would be in tension with this Court's case law on permitting fees. In Cox v. New Hampshire, 312 U.S. 569 (1941), this Court upheld a system of license fees for parades and processions. The state court had interpreted the fee to be "not a revenue tax, but one to meet the expense incident to the administration of [a statutory scheme] and to the maintenance of public order in the matter licensed." Id. at 577 (internal quotation marks omitted). This Court stated that "[t]here is nothing contrary to the Constitution in the charge of a fee limited" to such a purpose. Id. Shortly afterward, in Murdock, this Court struck down a fee on "canvassing" and "soliciting" because "the fee [was] not a nominal one"; it was not merely "imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors." 319 U.S. at 116. More recently, in Forsyth County, this Court struck down a content-discriminatory permitting fee; the government's justification for the fee—"raising revenue for police services"—was "an important government responsibility" but did not "justify a content-based permit fee." 505 U.S. at 135.

These cases have become the basis for lower-court case law that prevents governments from using permitting fees on speech to fund programs that go beyond the expenses of administering the permitting system itself. See, e.g., Sullivan v. City of Augusta, 511 F.3d 16, 38 (1st Cir. 2007) ("Only fees that cover the administrative expenses of the permit or license are permissible."); E. Conn. Citizens Action Gp. v. Powers, 723 F.2d 1050, 1056 (2d Cir. 1983) ("Licensing fees used to defray administrative expenses are permissible, but only to the extent necessary for that purpose."); Int'l Women's Day March Planning Cmte. v. City of San Antonio, 619 F.3d 346, 371 (5th Cir. 2010) (fees "clearly linked to the expense of '[c]leaning up the procession route' and the cost of any 'personnel' and 'devices' needed for traffic control"). Allowing the State here to use the fees collected to fund services distant from the administration of the tax program itself would weaken this Court's more stringent regulation of permitting fees.

Fifth, if one engaged in intermediate scrutiny under City of Renton, one would have to determine whether the tax is "narrowly tailored to serve a significant governmental interest." See, e.g., Clark, 468 U.S. at 293-94. Unlike strict scrutiny, intermediate scrutiny's narrow tailoring does not require that the government select the least restrictive alternative. See id. at 299. But the regulation must still "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Ward, 491 U.S. at 799 (internal quotation marks omitted). Even under this lower standard, a targeted tax likely fails: if the government (as here) is merely asserting a revenue goal, it could achieve that goal equally well by simply applying a more broad-based tax—here, by using general revenues. City of Renton intermediate scrutiny thus tends to be a poor fit for taxation.

Justice Kennedy was right to observe in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), that government "may not . . . impose a content-based fee or tax . . . even if [it] purports to justify the fee by reference to secondary effects." Id. at 445 (Kennedy, J., concurring in the judgment). Justice Kennedy was merely restating sound and well-established doctrine. The City of Renton secondary effects doctrine does not apply, and has never applied, to taxes. Recent case law merely clarifies the background rule, which is that content discrimination singling out particular subject matter is determined on the face of the statute—and that content-based enactments are analyzed under strict scrutiny. See Volokh, supra, at 657-64.

C. Lower Courts Have Wrongly Been Expanding the Content-Neutral Justification Rule.

The lack of clarity in the respective domains of Reed and the content-neutral justification rule has had predictable effects.

First, as documented in Part B.1 supra, lower courts have disagreed on whether City of Renton is still good law after Reed, and how much of their prior case law needs to be revisited in light of Reed.

Second, despite the strong connection between the City of Renton rationale and zoning and land-use regulation, some courts—not only the Georgia Supreme Court in this case, but also the Texas Supreme Court—have departed from the regulatory context and applied City of Renton to uphold taxes, even ones that are facially content discriminatory. See Combs, 347 S.W.3d at 286. On the other hand, a federal district court—analyzing a challenge to the same Texas tax that had been upheld in Combs—ruled, at the preliminary injunction stage, that the challenger could show a likelihood of success on the merits on its First Amendment claim. 9000 Airport LLC v. Hegar, No. 4:23-CV-03131, 2023 WL 7414581, at *4-*7 (S.D. Tex. Nov. 9, 2023). The court rejected the applicability of City of Renton: "The First Amendment permits restrictions only on the time, place, or manner of protected expression in a secondary effects case," and a tax is not a time, place, or manner restriction. Id. at *4.

D. The Conflict Between These Doctrines Should Be Resolved.

"The distinction between content-based and content-neutral regulations of speech is one of the most important in First Amendment law." Lakier, supra, at 233. It is therefore imperative that the conflict between these two doctrines be resolved.

That conflict could be resolved in at least the following three ways.

First, this Court could overrule the City of Renton/Hill content-neutral justification rule as being inconsistent with the Reed rule of strict scrutiny.

That is certainly a plausible approach. After all, this Court has already stated that Hill is a "distort[ion]" of "First Amendment doctrines," Dobbs, 597 U.S. at 287 & n.65, 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 (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, 915 F.3d at 1117)).

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 not invalidate very much—see Volokh, supra, at 634-40, for a discussion of the handful of adult-entertainment taxes that would or would not be affected. This option would also 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, 512 U.S. at 794 (Scalia, J., concurring in the judgment in part and dissenting in part). The City of Renton exception should not be expanded to erode or swallow up that rule.

Conclusion

For these reasons, petitioner requests that this Court grant its petition for a writ of certiorari.