Amicus Brief in Georgia Adult-Entertainment Case

FIRE and FALA urge the Supreme Court to grant cert in Georgia Ass'n of Club Executives v. Georgia.

A few weeks ago, I blogged (Parts 1 and 2) about the cert petition I filed in Georgia Ass'n of Club Executives v. Georgia, where we raised a First Amendment challenge to a state tax on adult entertainment establishments. Now, the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n (FALA) have filed an amicus brief supporting the cert petition. These are great organizations, who do good work in litigating free speech cases—I'm grateful for their help!

I'm reproducing the text of their brief below. The lawyers for the two organizations are Bob Corn-Revere, Ronnie London, Ed Rudofsky, and (my former student) Cory Conley.

Interest of amici curiae

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organi­zation that defends the rights of all Americans to free speech and free thought—the essential qualities of liberty.  Since 1999, FIRE has successfully defended First Amendment rights on college campuses nation­wide through public advocacy, targeted litigation, and amicus curiae filings in cases that implicate expressive rights. In June 2022, FIRE expanded its advocacy beyond the university setting and now defends First Amendment rights both on campus and in society at large. In lawsuits across the United States, FIRE works to vindicate First Amendment rights without regard to the speakers' views. E.g., Br. Amicus Curiae FIRE Supp. Pet'rs in No. 22-555 & Resp'ts in No. 22-277, Moody v. Netchoice, LLC, 603 U.S. 707 (2024); Br. Amicus Curiae FIRE Supp. Pet'rs, Free Speech Coal. v. Paxton, No. 23-1122 (filed May 16, 2024). FIRE is particularly opposed to government attempts to pass off content-based restrictions as regulations of conduct governed by intermediate or lesser scrutiny. See, e.g., Br. Amicus Curiae FIRE Supp. Pls.-Appellants, Alario v. Knudsen, No. 24-34 (9th Cir., filed May 6, 2024).

The First Amendment Lawyers Association (FALA) is a nonpartisan, nonprofit bar association comprised of attorneys throughout the United States and elsewhere whose practices emphasize defense of Freedom of Speech and of the Press, and which advocates against all forms of government censorship. Since its founding, its members have been involved in many of the nation's landmark free expression cases, including cases before this Court. See, e.g., Ashcroft v. Free Speech Coalition, Inc., 535 U.S. 234 (2002) (successful challenge to Child Pornography Prevention Act argued by FALA member and former president H. Louis Sirkin); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) (successful challenge to "signal bleed" portion of Telecommunications Act\ argued by FALA member and former president Robert Corn-Revere). In addition, FALA has a tradition of submitting amicus briefs to the Court on issues pertaining to the First Amendment. See, e.g., City of Littleton v. Z.J. Gifts D-4, LLC, 2004 WL 199239 (Jan. 26, 2004) (amicus brief submitted by FALA); United States v. 12,200-ft Reels of Super 8mm Film, 409 U.S. 909 (1972) (order granting FALA's motion to submit amicus brief).

Summary of Argument

This Court has long recognized that, under the First Amendment, content-based laws are "presump­tively unconstitutional," and subject to a rigorous form of strict scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Content-neutral "time, place, and manner" regulations, meanwhile, face the more forgiving standard of intermediate scrutiny. The reason is simple: content-based restrictions invite the government to play favorites with speech, an invitation the First Amendment firmly declines.

Laws that regulate speech based on its message or subject matter are rightly treated with extreme skepticism because they pose the greatest risk of government overreach. As the Court put it in Police Dep't of Chicago v. Mosley, "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." 408 U.S. 92, 95 (1972). On the other hand, content-neutral laws—those blind to the message being conveyed—earn more judicial breathing room because they don't put the government's thumb on the scale of public discourse. This is not a technicality; whether a regulation is content-based is the first question any court asks in a First Amendment case, and the answer often writes the conclusion before the analysis even begins. The content-based distinction is what keeps government from appointing itself the ultimate editor of American discourse, deciding what speech is safe, what speech is suspect, and ultimately, what speech survives.

But courts cannot referee effectively when the rules of the game are unclear. The "secondary effects" doctrine articulated in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and the broader "content-neutral justification" rule announced by Hill v. Colorado, 530 U.S. 703 (2000), allow governments to recharacterize content-based distinctions as merely incidental to content-neutral purposes. Reed, on the other hand, establishes a clear, administrable rule that gives full effect to the First Amendment: laws that regulate speech based on its content are subject to strict scrutiny, regardless of the government's benign motive or content-neutral justification. 576 U.S.at 163–64.

In this case, Georgia enacted a tax that, by any measure, is content-based. It specifically targets establishments based on expressive performances, the content of which must be evaluated in order to determine the applicability of the tax.  Ga. Code Ann. §§ 15-21-209, -201(1)(A).  To enforce the tax, government officers must examine whether dancing is nude, whether movements are sexual in nature, and whether these elements constitute "entertainment"—making the tax inherently content-based rather than content-neutral, like laws against public nudity alone.

Yet the Georgia Supreme Court assumed that under Renton intermediate scrutiny applied, and upheld the law after deciding the "purpose" of the tax was to address the "undesirable secondary effects" of the content at issue. Georgia Ass'n of Club Executives, Inc. v. State, 320 Ga. 381, 389 (2024). Other lower courts have felt similarly bound by Renton, or have extended both Renton and Hill beyond their original contexts, even when Reed would seem to stand in the way.

The Court should end the confusion and clarify that Reed means what it says: laws that distinguish based on content are content-based, regardless of the government's purported intent or justifications. The Court should in doing so explicitly acknowledge and resolve in favor of Reed the doctrinal inconsistencies that Renton and Hill introduced. This case offers an ideal vehicle for the Court to do so.

Argument

I. The Content-Based/Content-Neutral Distinction is the Most Important Inquiry in Protecting Free Expression

The First Amendment, "[p]remised on mistrust of governmental power," stands as a bulwark against "attempts to disfavor certain subjects or viewpoints." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010). And "as a general matter, the First Amend­ment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." United States v. Alvarez, 567 U.S. 709, 716 (2012) (Kennedy, J.) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)).   Thus, the first inquiry in any free speech case—and the most critical one—is whether the law in question is content-based or content-neutral.

A law is content-based if it "applies to particular speech because of the topic discussed or the idea or message expressed." Reed, 576 U.S. at 163.  And if it is, the analysis is straightforward—strict scrutiny applies. See, e.g., Alvarez, 567 U.S. at 724 (2012) (referring to it as "the 'most exacting scrutiny'" (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)).  Content-based laws allow the government to "pick and choose" among ideas, Perry Educ. Assn v. Perry Local Educator's Ass'n, 460 U.S. 37, 55 (1983)—something the First Amendment flatly forbids. Laws that fall into this category—whether by punishing disfavored viewpoints, limiting speech from certain speakers, or manipulating the information available to the public—are not just ill-advised. They are unconstitutional.

The Court has repeatedly, and emphatically, recognized that  content-based laws "have the constant potential to be a repressive force in the lives and thoughts of a free people." Ashcroft v. ACLU, 542 U.S. 656, 660 (2004). See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.).  As a consequence, "content-based regulations are presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). See also Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018) ("content-based regulations 'target speech based on its communicative content,' and are therefore 'presumptively unconstitutional.'") (quoting Reed, 576 U.S. at 163).

Ten years ago, in Reed, the Court delivered a forceful reaffirmation of the content neutrality principle, striking down a municipal sign code that imposed different restrictions on signs based on their message categories. Writing for the majority, Justice Thomas articulated an expansive definition of content discrimination, declaring that "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." Reed, 576 U.S. at 165 (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). The Court rejected the notion that seemingly innocuous distinctions between types of speech could escape strict scrutiny, firmly establishing that "a law that singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter" remains inherently suspect. Id. at 169. And the Court warned that "innocent motives do not eliminate the danger of censorship. Id. at 167–68.

The content-based distinction has real consequences. Because of the deliberately exacting and unforgiving nature of strict scrutiny review, when it comes to free speech challenges, the content-based/content-neutral distinction isn't just important; it is often the whole ballgame.  As this Court has acknowledged, the application of strict scrutiny to content-based regulations is typically fatal: "It is rare that a regulation restricting speech because of its content will ever be permissible." United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 818 (2000). See also Williams-Yulee v. Florida Bar, 575 U.S. 433, 434 (2015). (it is the "rare case[ ] in which a speech restriction withstands strict scrutiny.") In the real world of First Amendment litigation, then, the content distinction isn't a doctrinal nuance—it is the constitutional "toggle switch" that determines whether speech regulations live or die.

II. Renton and Hill Have Created Significant Uncertainty About What Is Content-Based and What Is Not

Despite Reed's reaffirmation that laws distinguishing speech based on its content must face strict scrutiny, the persistence of the Court's "content-neutral justification" doctrine injects troubling and unnecessary ambiguity into First Amendment jurisprudence by blurring the line between content-based and content-neutral regulations. The Court should take this opportunity to reaffirm that a regulation which, on its face, targets specific speech based on its content must be subject to strict scrutiny, regardless of governmental assertions about the regulation's purpose or intent.

In Renton, the Court upheld a zoning ordinance restricting the location of adult theaters, deeming it content-neutral despite its obvious focus on a particular category of speech.  According to the majority opinion, the city's "predominate concerns" were with the "secondary effects" of such theaters—crime, property values, and the "quality of urban life"—rather than the content of the films themselves, and thus, the ordinance could escape the rigors of strict scrutiny. 475 U.S. at 47-49. But what started as a narrow exception tailored to the unique context of urban planning has morphed into something much worse.  The "secondary effects" doctrine, which "rides roughshod over cardinal principles of First Amendment law," Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 85–86 (1976) (Stewart, J., dissenting), has become a handy escape hatch from strict scrutiny, inviting governments to recharacterize content-based regulations as content-neutral whenever they can point to some indirect effect of the regulated speech.

But if Renton opened a small crack in First Amendment doctrine, Hill v. Colorado, supra, 530 U.S. 703, drove a truck through it.  In Hill, the Court upheld a statute that prohibited approaching within eight feet of a person near a healthcare facility "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling." Id. at 707.  Despite this law's explicit regulation of specific types of speech (protest, education, counseling), the majority deemed it content-neutral.  The statute in Hill restricted speech based on what speakers were saying—precisely the kind of content-based regulation that should trigger strict scrutiny. Justice Kennedy's dissent summarized the problem aptly:

The Court's holding contradicts more than a half century of well-established First Amendment principles. For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk. If from this time forward the Court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum.

Id. at 765 (Kennedy, J., dissenting).

Members of the Court have since signaled their discomfort with Hill. In McCullen v. Coakley, 573 U.S. 464 (2014), while declining to overrule the earlier case, the Court emphasized that buffer zone laws impose "serious burdens" on speech. Id. at 487.  In City of Austin v. Reagan Nat. Advertising of Austin, LLC, 596 U.S. 61 (2022), Justice Thomas, in a dissent joined by Justices Gorsuch and Barrett, proclaimed that "Hill is an aberration in our case law," 596 U.S. at 92, and declared Hill to be "defunct." Id. at 103. Most recently, in a dissent from a denial of certiorari this term, Coal. Life v. City of Carbondale, Illinois, 145 S. Ct. 537 (2025), Justice Thomas called on the Court to explicitly overturn Hill, noting that five justices have already stated in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), that Hill "distorted" the Court's First Amendment precedents. Id. at 287. Comparing Hill's degraded status to that of the long-abandoned three-part Establishment Clause test under Lemon v. Kurtzman, 403 U.S. 602 (1971),  Justice Thomas concluded that "Hill's abandonment is arguably even clearer than Lemon's." Coalition Life, 604 U.S. at 540.

These concerns reflect reality: the Court simply cannot square the clarity of Reed with the theoretical contortions of Hill and Renton. Under Reed's straight­forward analysis, the regulations in both Renton (singling out adult theaters) and Hill (singling out "protest, education, or counseling") would be plainly content-based and subject to strict scrutiny. Justice Kagan recognized this tension in her concurrence in Reed, noting the majority's sweeping approach might cast doubt on many "entirely reasonable" regulations that have been on the books for years. Id. at 178 (Kagan, J., concurring). While Justice Kagan worried about Reed's potential breadth, her concerns expose the fundamental incompatibility between Reed and Renton and Hill.

The inconsistencies between Reed, Renton, and Hill have also created a doctrinal quagmire for lower courts. When faced with a regulation that appears content-based on its face, but might be justified by reference to secondary effects or other purportedly content-neutral concerns, which precedent controls?

Some courts have treated Reed as implicitly overruling aspects of Renton and Hill. See, e.g., Free Speech Coal., Inc. v. Att'y Gen. U.S., 825 F.3d 149, 160 (3d Cir. 2016) (holding that in light of Reed, the recordkeeping, labeling, and inspection requirements of the Child Protection and Obscenity Enforcement Act were content based and subject to strict scrutiny under First Amendment, reversing its previous holding applying intermediate scrutiny.) Others continue to apply these earlier precedents, particularly in contexts similar to their original applications. See, e.g., BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015) (refusing to "upend established doctrine" and continuing to apply Renton to adult business zoning despite Reed); Price v. City of Chicago, 915 F.3d 1107, 1119 (7th Cir. 2019) (adhering to Hill, despite acknowledging that Hill is "incompatible with current First Amendment doctrine as explained in Reed"). Still others have applied Hill even in cases with facts similar to those presented in Reed.  See, Act Now to Stop War & End Racism Coal. v. Dist. of Columbia, 846 F.3d 391, 403–04 (D.C. Cir. 2017) (citing Hill and applying intermediate scrutiny to uphold an ordinance that set different rules for lamppost signs depending on whether or not the signs were event-related) And more generally, appellate courts have demonstrated an alarming willingness to engage in doctrinal gymnastics to avoid applying strict scrutiny in speech cases. See, e.g., Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024) (classifying Texas's law requiring age verification for sexual material as content-neutral by focusing on the overarching purpose of protecting minors rather than the law's facial content discrimination).

The Georgia Supreme Court's opinion in this case is a clear application of the Renton/Hill doctrine that exemplifies its contradiction with Reed. Although the Georgia statute explicitly taxes "adult entertainment establishments" based on the sexually expressive nature of their entertainment—clearly a content-based distinction—the court nevertheless classified the tax as content-neutral, relying solely on the state legislature's purported intention to address the establishments' negative "secondary effects." Georgia Ass'n of Club Executives, Inc., 320 Ga. at 387. The court emphasized the legislature's stated purpose to regulate not the expressive conduct itself but only its indirect consequences, allowing the law to evade strict scrutiny under the guise of intermediate scrutiny. This epitomizes precisely the danger Justice Kennedy warned against: the elevation of a government's purported "justification" over the clear textual targeting of speech. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring). ("The fiction that this sort of ordinance is content neutral—or 'content neutral'—is perhaps more confusing than helpful …. It is also not a fiction that has commanded our consistent adherence.")

But even on its own terms, the zoning rationale articulated in Renton is fundamentally incompatible with tax-based regulations like Ga. Code Ann. § 15-21-201(1). Renton permitted zoning ordinances targeting adult establishments to be treated as content-neutral if their primary purpose was addressing secondary effects rather than restricting the expressive content itself. Extending this rationale to taxation misapplies Renton's reasoning. Taxation inherently targets economic activity directly tied to expressive content, thereby creating an explicit and unavoidable content-based distinction. And there are no "secondary effects" of the kind contemplated in Renton that a tax might address.

Neither Georgia nor any other state should be permitted to weaken the protection of the First Amendment by cloaking a content-based regulation in content-neutral clothing. Without intervention by this Court, such reasoning will perpetuate the very ambiguity and uncertainty that Reed sought to eliminate.

III. Resolving This Uncertainty is Especially Important as Courts Are Using Hill and Renton to Justify Restrictions Beyond Adult Businesses and Abortion Clinics

What began as narrow exceptions in specific contexts has morphed into something more troubling—a roadmap for governments to evade strict scrutiny in contexts never contemplated by this Court. Lower courts are now applying Hill and Renton beyond their original domains of abortion clinics and adult businesses, creating a permission structure for content-based restrictions that threatens to swallow the First Amendment's core protections.

The Ninth Circuit's decision in Project Veritas v. Schmidt, 125 F.4th 929 (9th Cir. 2025), exemplifies this expansion. There, the court upheld a ban on non-consensual surreptitious recordings that explicitly distinguished between recordings of law enforcement (allowed) and recordings of everyone else (prohibited)—a textbook content-based distinction under Reed. The court, sitting en banc, held Oregon's law was content-neutral because the government's purpose wasn't to suppress speech. Id. at 950. But that's a misreading of Reed—and an overextension of Hill. The key question isn't what the government intends but whether the law, on its face, treats speech differently based on its content. Enforcing Oregon's law required the government to listen to the recording and determine its content. A secretly recorded chat with a Public Records Advocate? Illegal. A conversation with a police officer? No problem. In other words, it is content-based regulation in its most straightforward sense.

Similarly, the Fifth Circuit, in Siders v. City of Brandon, Mississippi, 123 F.4th 293 (5th Cir. 2024), upheld a city ordinance that restricted public protests and demonstrations near a public amphitheater, holding the regulation was content-neutral under Hill. The court rejected a challenge from a Christian evangelist who sought to engage in expressive activities near the venue, holding that intermediate scrutiny applied, and that the ordinance was justified by public safety concerns and left open alternative channels for communication. Id. at 304–09. The court relied on Hill to support its conclusion that a restriction on speech based on location rather than message is not content-based, even though the ordinance specifically regulated "public protests and/or demonstrations," singling out a category of speech based on its communicative impact. Id. at 304–05. In other words, Hill has escaped the abortion clinic context to become a generalized tool for restricting protest speech.

Finally, in Blythe v. City of San Diego, 2025 WL 108185 (S.D. Cal. Jan. 14, 2025), a district court upheld a sweeping ban on "First Amendment activity" within 100 feet of "health care facilities, places of worship, and school grounds." The court leaned heavily on Hill, treating it as controlling precedent despite the fact that the San Diego ordinance reached far beyond abortion clinics to restrict speech near any "place of worship" or "school grounds." Id. at *7. In doing so, the court transformed Hill's already problematic framework into a blank check for governments to create speech-free zones around virtually any "sensitive" location.

But even when the government loses a First Amendment case, there is pressure on courts to integrate the "secondary effects" rationale where it does not, and could not, apply. This is because governments continue to make far-flung arguments rooted in the secondary effects doctrine. For instance, in Free Speech Coal., Inc. v. Skrmetti, 2024 WL 5248104, at *14 (W.D. Tenn. Dec. 30, 2024), Tennessee argued that intermediate scrutiny should apply under Renton even to a statute that issue imposed content-based restrictions by requiring operators of websites comprised of 1/3 content deemed harmful to minors to verify that each visitor was at least 18 years old. It did so even though the law only addressed content, not secondary effects. This Court has previously rejected such attempts to extend the secondary-effects rationale to direct content-based restrictions. See Reno v. ACLU, 21 U.S. 844, 868 (1997) (holding the secondary-effects doctrine inapplicable where the law directly targeted the primary effects of online content).

This expansion creates precisely the danger this Court has repeatedly warned against: that the government will "effectively drive certain ideas or viewpoints from the marketplace," Simon & Schuster v. Members of NY State Crime Victims Bd., 502 U.S. 105, 116 (1991), by selectively restricting speech based on its content. When courts allow governments to recast content-based laws as content-neutral by invoking Hill and Renton beyond their original contexts, they gut the First Amendment's most basic protection—its prohibition on content discrimination.

Conclusion

This Court should grant the petition for a writ of certiorari.