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.

Comments

[Michael Ejercito]

What are secondary effects?

[Krayt]

Lies that suport outlawing something for icky ancient prudish puritan reasons. The pilgrims fled oppression so they could be free, uhhh, to ram their own ideas down everyone's throat instead of having their throats rammed.

One picks one's position, then assembles lists of reasons for it, which have nothing to do with why they support this position.

[Ama Valde Intellectum]

Wrong on all 3 points you think you are making
1) The difference between primary and secondary effects is bogus as any Logic 101 or Phillosophy 101 or indeed Law 101 student knows. All effects have many causes and go back temporally forever and all causes have multiple effects . Your one -cause-one-effect has NEVER been accepted in Western Thought !!!

2) As with all your posts you avoid religoin and morality but try to squeeze it in (because you know you are wrong) by attributing motives you ave no way of knowing. People laugh when you characterize everyone who opposes you as prudish 🙂
3) Your last sentence makes you look a moron. You have no way at all of knowing any of these 4 non-facts
a) that anybody who disagrees with you FIRST picks the position and then tries to buttress it. or B) Assembles ? you sound psycho
c) How is it even logical to say that because you don't see why they couldn't possibly see why ???? D) you yourself violated all 4 of the matters you criticized in your opponents !!!

-- you picked your postion with no support
-- all your argument is against what you assume in your opponents
--- you imply it is immoral to do what they do AFTER SAYING " icky ancient prudish purita" !!!!
----As with everythoing you post you say "I must be right because ---wait for it --- you must be wrong.

You gave me a laugh to start my day

[Krayt]

You pick your position because you imagine a god is frowny-facing you. Then you work backwards for supporting arguments severed from that.

"Poor is the man whose pleasures depend on the permission of another."

That's my position. Pure, raw freedom, and I see motivated, irrelevant assaults against it, for reasons severed from oh no God doesn't like it!

[not guilty]

If God had intended us to be naked, we would have been born that way.

[mike petrik]

Not what happened. There are multiple studies that demonstrate the association between adult entertainment spots and illegal sex trafficking. The existence of the first does seem to invite phenomena of the second. Groups wanting increased resources to combat such sex trafficking sex successfully fought for a Georgia constitutional amendment to impose a levy on adult entertainment spots earmarked to fund anti- sex trafficking enforcement. It was never about opposing nudie bars as such.

[MatthewSlyfield]

"There are multiple studies that demonstrate the association between adult entertainment spots and illegal sex trafficking. The existence of the first does seem to invite phenomena of the second."

I wonder what those studies did to rule out the concentration of multiple adult entertainment venues in one area as what attracts illegal sex trafficking? Did they even consider that possibility?

[mike petrik]

My recollection is that the more concentrated the greater to risk of sex-trafficking. Sometimes the concentration is the result of zoning. Sometimes it is simply a business synergy similar to arts retailers tending to congregate. In either case the association was demonstrable. Whether that is sufficient to justify the policy or pass legal muster are different questions.

[MatthewSlyfield]

Sounds like far from justifying policies forcing concentration, it would justify the polar opposite, forcing them to spread out.

[mike petrik]

I'm not sure I follow. The case is about a tax, not concentration.

[not guilty]

Contending that this tax is not about nudie bars makes about as much sense as contending that Huey Long's tax on some newspapers, Grosjean v. American Press Co., 297 U.S. 233 (1936), was not about freedom of the press to criticize the government. As Chief Justice Marshall famously said, "the power to tax involves the power to destroy". McCulloch v. Maryland,
17 U.S. 316, 431 (1819).

[Sasha Volokh]

"Secondary effects" are effects of the speech that are unrelated to speech. E.g., if they want to zone adult film theaters into one area of town, and they say "We don't care whether people watch pornography; it's just that adult film theaters attract crime, prostitution, drugs, litter, reduced property values, etc.; so we want to zone adult film theaters into this one area so as to reduce the aggregate impact of these 'secondary effects' and concentrate our policing into this area."

[not guilty]

The "secondary effects" doctrine is a legal fiction which courts rely upon to uphold regulation of sex related speech and materials against First Amendment and Equal Protection challenges as being "content neutral" regulation of the time, place and manner of expression, despite such measures being facially content based.

The phrase dates back to a plurality opinion in Young v. American Mini Theatres, 427 U.S. 50 (1976), a case which considered the constitutionality of then-recent amendments to Detroit's "Anti-Skid Row Ordinance", which restricted zoning of "regulated uses" and applied to 10 different kinds of business establishments in addition to adult theaters, including adult book stores, cabarets, bars, taxi dance halls, and hotels. The amendments at issue added adult theaters to the list of "regulated uses".

At footnote 34 of the opinion, Justice Stevens wrote for a plurality of the Court:

The Common Council's determination was that a concentration of "adult" movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech.

<Id., at 71, n.34. The plurality concluded:

Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, even though the determination of whether a particular film fits that characterization turns on the nature of its content, we conclude that the city's interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures. We hold that the zoning ordinances requiring that adult motion picture theaters not be located within 1,000 feet of two other regulated uses does not violate the Equal Protection Clause of the Fourteenth Amendment.

Id., at 71-73 (footnotes omitted). Justice Stevens also unfortunately suggested in his plurality opinion "that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment." Id., at 70.

Justice Powell in a concurring opinion distanced himself from Part III of Justice Stevens's opinion, specifically the notion "that nonobscene, erotic materials may be treated differently under First Amendment principles from other forms of protected expression." Id., at 73, n.1 (Powell, J. concurring). He opined, "I view the case as presenting an example of innovative land-use regulation, implicating First Amendment concerns only incidentally and to a limited extent. Id. at 73. Powell emphasized that the Detroit Common Council had broad regulatory power to deal with the problem that prompted enactment of the Anti-Skid Row Ordinance, and he noted that the plaintiffs "apparently concede the legitimacy of the ordinance as passed in 1962, but challenge the amendments 10 years later that brought within its provisions adult theaters as well as adult bookstores and 'topless' cabarets." Id., at 75.

In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Justice Rehnquist made hash of the requirement that content based restrictions of expression must survive strict scrutiny analysis. The zoning ordinance before SCOTUS regulated the location of any "adult motion picture theater". Id., at 44. Theatres exhibiting other content were unaffected.

The Renton Court opined:

At first glance, the Renton ordinance, like the ordinance in American Mini Theatres, does not appear to fit neatly into either the "content-based" or the "content-neutral" category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at "adult motion picture theatres," but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council's "predominate concerns" were with the secondary effects of adult theaters, and not with the content of adult films themselves.

Id., at 47 (italics in original). The Court upheld the challenged ordinance as a "content neutral" regulation of the time, place and manner of First Amendment protected expression. In one of the most intellectually dishonest assertions ever to appear in a judicial opinion, Justice Rehnquist stated:

In short, the Renton ordinance is completely consistent with our definition of "content-neutral" speech regulations as those that "are justified without reference to the content of the regulated speech." Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (emphasis added); [Clark v.] Community for Creative Non-Violence, [468 U.S. 288, 293 (1984)]; [Heffron v.] International Society for Krishna Consciousness, 452 U.S. 640, 648 (1981).] The ordinance does not contravene the fundamental principle that underlies our concern about "content-based" speech regulations: that "government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views." [Police Dept. of Chicago v.] Mosley, 408 U.S. 92, 95-96 (1972).]

475 U.S. at 48-49.

[BrotherMovesOn]

Thanks for this.

[Krayt]

"Poor is the man whose pleasures depend on the permission of another."

[Krayt]

Ban speech because of secondary effects? Let's ban speech in favor of Putin because it turns over control of part of Europe to a dictator's rolling tanks.

How's that for secondary effects?

[ReaderY]

As I said in a comment on a previous post, I think Renton really stands for the proposition that “adult entertainment” represents a category intermediate between fully bannable as obscene and fully protected. Since historically “obscenity” covered a much broader swathe than it does today, any originalist interpretation of the First Amendment would place all of this material in the fully unprotected obscene category.

For this reason, creating an intermediate semi-obscene category represents a considerable departure from originalism in a distinctly libertarian direction. And if the Court were to return to originalist interpretations, the result would be not to protect this material more, but to expand the obscenity category back to its original scope and find it fully bannable.

I think this would be a much more legitimate interpretation of Renton than the original “secondary effects” doctrine.

Intermediate categories have a long history in this country. Choosing not to fully ban something but to restrict it and require it to be on the edge of town has been a standard way of dealing with activities others find problematic. Before WWI, many localities had this approach to prostitution in particular, and Nevada still does. a number of states, Southern states in particular, applied the approach to alcohol in the years after prohibition. And so on.

Given that the Court has found this approach intuitively attractive, rather than stretch binary categories to try to justify it, the Court should instead recognize the existence of an intermediate category as a basis for treating “adult entertainment” differently. Legally recognizing the actual state of affairs would not only be more intellectually honest, it would get the Court closer to originalism. An honest acknowledgement of the intellectual compromise between originalism and libertarianism that has been its actual path would enable it to rule more appropriately than continuing to pretend there are only two categories and trying to justify its intermediate approach by means of dubious mental gymnastics.

[not guilty]

"As I said in a comment on a previous post, I think Renton really stands for the proposition that “adult entertainment” represents a category intermediate between fully bannable as obscene and fully protected. Since historically “obscenity” covered a much broader swathe than it does today, any originalist interpretation of the First Amendment would place all of this material in the fully unprotected obscene category."

Is printed or pictorial material being semi-obscene akin to a woman being a little bit pregnant?

And I am not so sure about what was considered obscene when the Bill of Rights was adopted. Obscenity was not recognized as an exception to First Amendment protection until Roth v. United States, 354 U.S. 476, 485 (1957). Justice Douglas wrote in dissent in United States v. 12 200-ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973):

The First Amendment was the product of a robust, not a prudish, age. The four decades prior to its enactment "saw the publication, virtually without molestation from any authority, of two classics of pornographic literature." D. Loth, The Erotic in Literature 108 (1961). In addition to William King's The Toast, there was John Cleland's Memoirs of a Woman of Pleasure which has been described as the "most important work of genuine pornography that has been published in English . . . ." L. Markun, Mrs. Grundy 191 (1930). In England, Harris' List of Covent Garden Ladies, a catalog used by prostitutes to advertise their trade, enjoyed open circulation. N. St. John-Stevas, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e.g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gallichan, The Poison of Prudery (1929); D. Loth, supra; L. Markun, supra. This was the age when Benjamin Franklin wrote his "Advice to a Young Man on Choosing a Mistress" and "A Letter to the Royal Academy at Brussels." "When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was 'one of the best novels in the language.'" Loth, supra, at 120. It was in this milieu that Madison admonished against any "distinction between the freedom and licentiousness of the press." S. Padover, The Complete Madison 295 (1953). The Anthony Comstocks, the Thomas Bowdlers and Victorian hypocrisy — the predecessors of our present obscenity laws — had yet to come upon the stage.

Id., at 132-133 (Douglas, J., dissenting (footnote omitted).

[ReaderY]

Onscenity laws predated the constitution. Federal obscenity laws had been enforced many, many times before Roth. It had simply never occurred to anyone that they might be unconstitutional.

And I don’t understand your argument. Date rape appears to be common in this country. Does that make laws against it unconstitutional? As an originalist matter, the constitutionality of sexual morality laws has nothing more to do with how much people abide by them than the constitutionality of speeding laws.

[Sasha Volokh]

Hi ReaderY, I'll just reprint here my reply to your comment on my previous post:

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!