First Amendment Scholars' Amicus Brief in Georgia Adult-Entertainment Case
22 law professors urge the Supreme Court to take up Georgia Ass'n of Club Executives v. Georgia.
Regular readers will remember my blogging (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, and about the amicus brief supporting the cert petition filed by the Foundation for Individual Rights and Expression (FIRE) and the First Amendment Lawyers Ass'n.
Now, more amicus briefs have come in. (The state's brief is due in a month and our reply brief soon after that, so we should find out whether cert is granted by sometime this summer.) The first brief I'll mention is the First Amendment Scholars' brief, filed by Chris Paolella of Reich & Paolella LLP.
Here's the text of the (interesting parts of the) brief:
Interests of Amici Curiae
Amici are 22 legal scholars who research, teach, and publish scholarship on the First Amendment's free speech clause. Their names, their institutional affiliations, and examples of their relevant scholarship are set forth in the Appendix to this brief. Amici have no personal interest in this case; they submit this brief to urge the Court to grant certiorari to resolve a long-standing inconsistency in its First Amendment jurisprudence.
Summary of Argument
The threshold question in deciding whether a government regulation offends the First Amendment's guarantee of freedom of speech is whether the regulation discriminates based on the content of the speech. Laws "that target speech based on its communicative content . . . are presumptively unconstitutional." Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). They are subject to strict scrutiny, which requires the government to show that the restriction "is 'narrowly drawn' to further a 'compelling interest' and that the restriction amounts to the 'least restrictive means' available to further that interest." Ashcroft v. ACLU, 542 U.S. 656, 677 (2004) (citations omitted).
"On the other hand, so-called 'content-neutral' time, place, and manner regulations" aimed at combating "the undesirable secondary effects" of expression are subject to the less exacting standard of intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 49 (1986). To survive intermediate scrutiny, a restriction on speech or expression need only be "narrowly tailored to serve the government's legitimate, content-neutral interests"; it need not "be the least restrictive or least intrusive means of doing so." Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).
In most cases, the decision whether to apply strict or intermediate scrutiny will determine whether the regulation survives. But the line dividing content-based laws and content-neutral regulations has never been entirely clear. In recent years, that line has become even blurrier.
In Reed, this Court declared that content-based regulations are 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." 576 U.S. at 165. This holding is in obvious tension with City of Renton's view that, in at least some cases, a content-neutral "secondary effects" justification is enough to escape strict scrutiny—even where a law singles out a particular type of expressive content for regulation. Some lower courts have read Reed as undermining City of Renton and have revisited their prior jurisprudence in this area.
But other courts continue to apply City of Renton's "secondary effects" rationale to uphold laws that, on their face, discriminate between types of speech. And they apply them in contexts beyond the "time, place, and manner" restrictions at issue in City of Renton. Here, the Georgia Supreme Court upheld a tax levied on certain businesses featuring nude dancing—a type of expressive content—because the ordinance was "'aimed not at the content' of adult entertainment, but 'rather at the secondary effects'" of the expression. Pet. App. 15a (quoting City of Renton, 475 U.S. at 47–48) (emphasis in original). Other courts have applied this rationale to uphold laws regulating not just adult entertainment but also other types of speech, including public protest.
In short, there is incoherence at the center of this Court's First Amendment jurisprudence. Government regulators, speakers, and lower courts have no clear guidance as to whether a particular regulation will be viewed as content-based and subject to exacting strict scrutiny, or as a content-neutral regulation of secondary effects that need only satisfy intermediate scrutiny. This confusion has the potential both to confound good faith attempts at regulation and to chill speech that should be protected by the First Amendment.
Amici have differing perspectives on the continuing viability of City of Renton, as well as on the extent to which the government may constitutionally regulate specific types of speech based on that speech's secondary effects. They therefore take no position on whether City of Renton should be overruled, limited to a particular context, or read to cover facts like those here. Nor do they take any position on how the Court should rule on the challenged Georgia law.
But they agree that the Court must provide clear guidance as to the level of scrutiny that applies to a law which singles out a particular type of expressive content but provides a content-neutral justification. Until it resolves the tension between Reed and City of Renton, lower courts will continue to be afloat.
The Court should grant certiorari to resolve this fundamental inconsistency in its free speech jurisprudence.
Argument
The Court Should Grant Certiorari to Resolve the Inconsistency between Reed and City of Renton and Its Progeny.
A. There is substantial tension between this Court's rulings in City of Renton and its progeny, on the one hand, and Reed, on the other.
This Court has long held that regulations that discriminate based on the content of speech are subject to the most exacting scrutiny. See, e.g., Police Dep't of City of Chicago v. Mosley, 408 U.S. 92 (1972) (applying strict scrutiny to strike down ordinance generally prohibiting picketing near schools but permitting labor-related picketing: "Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject").
In City of Renton, the Court recognized an exception to this rule. Applying intermediate scrutiny, it upheld a zoning ordinance that discriminated against adult movie theaters—on its face, a content-based distinction. While recognizing that "regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment," the Court concluded that "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." 475 U.S. at 46–47 (emphasis in original).
City of Renton generated a line of caselaw standing for the proposition that "regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citing City of Renton, 475 U.S. at 46–47) (emphasis added). These cases extend beyond the adult entertainment context and involve regulations that, on their face, apply to specific types of expressive content.
Most notably, in Hill v. Colorado, the Court upheld a criminal statute prohibiting knowingly approaching 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." 530 U.S. 703, 707 (2000). Applying the framework elaborated in Ward, the Court concluded that the law was content-neutral because, among other factors, "it was not adopted 'because of disagreement with the message it conveys.'" Id. at 719 (quoting Ward, 491 U.S. at 791). Rather, the Court emphasized, the statute served the "prophylactic" purpose of "protect[ing] those who wish to enter health care facilities, many of whom may be under special physical or emotional stress, from close physical approaches by demonstrators." Id. at 729.
City of Renton and its progeny embody the principle that, even when a law facially singles out a specific type of expressive content, it can nevertheless escape strict scrutiny if it is justified by a content-neutral purpose, like combating the secondary effects of the speech. In such cases, intermediate scrutiny applies.
This line of cases is in direct tension with the Court's decision in Reed. There, the Court struck down a municipal sign code that classified different types of signs into categories based on their content, and subjected each category to different regulations. While the town offered content-neutral justifications for treating different categories of signs differently, the Court concluded that the law was content-based and applied 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. . . . In other words, an innocuous justification cannot transform a facially contentbased law into one that is content neutral.
Reed, 576 U.S. at 165 (citations omitted). And it emphasized that a court must "consider[] whether a law is content neutral on its face before turning to the law's justification or purpose." Id. at 166 (emphasis in original). If it is not, then strict scrutiny applies.
Under City of Renton and its progeny, a law that singles out a specific type of expressive content but relies on a content-neutral justification is subject to intermediate scrutiny. Under Reed, a facially content-based law is always subject to strict scrutiny, regardless of its purpose or justification. While amici take no position on which rule should prevail, it is clear that these principles are not compatible.
B. Lower courts have struggled to reconcile these inconsistent lines of jurisprudence.
Reed did not purport to overrule City of Renton or any of its progeny. But members of this Court have noted the significant tension between the two lines of cases. So have First Amendment scholars. So have some lower courts.
And lower courts struggle to apply these incompatible, but equally binding, precedents in a consistent way. In the wake of Reed, some courts reject City of Renton-type "content-neutral justification" arguments and apply strict scrutiny to regulations that discriminate based on content. See, e.g., Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015) (striking down law prohibiting politically-related robocalls as impermissibly content-based: "Reed has made clear that . . . the government's justification or purpose in enacting the law is irrelevant"); Free Speech Coal., Inc. v. Skrmetti, — F. Supp. 3d —, 2024 WL 5248104, at *14 (W.D. Tenn. 2024) (striking down law requiring websites containing content deemed harmful to minors to verify the age of users: "the secondary effects doctrine only applies to laws that are content-neutral") (emphasis in original); Champion v. Commonwealth, 520 S.W.3d 331, 337 (Ky. 2017) (striking down anti-panhandling ordinance as impermissibly content-based: "The government's purpose is only relevant . . . after concluding that the regulation is facially content-neutral.").
Other courts, including the court below, continue to rely on City of Renton and its progeny and apply intermediate scrutiny to content-based regulations that are justified by a content-neutral rationale. See, e.g., Pet. App. 15a; Siders v. City of Brandon, 123 F.4th 293, 304 (5th Cir. 2024) (upholding ordinance restricting protests and demonstrations near public amphitheater: "the Supreme Court has not overruled Hill" and "the similarity between this ordinance and the statute in Hill is significant"); Ass'n of Club Executives of Dallas, Inc. v. City of Dallas, 83 F.4th 958, 964 (5th Cir. 2023) (upholding ordinance restricting hours of sexually-oriented businesses based on secondary effects: "Plaintiffs argue that Renton is no longer good law. . . . We reject [that] argument[].").
While some of those courts note the tension with Reed, they have concluded, as the Fifth Circuit put it, that "whether to overrule or modify Renton is the High Court's business, not ours." Ass'n of Club Executives of Dallas, 83 F.4th at 965; see also Price, 915 F.3d at 1111 ("The Court's intervening decisions have eroded Hill's foundation, but the case still binds us; only the Supreme Court can say otherwise.").
This Court's intervention is required to resolve the tension between these incompatible strains of its First Amendment jurisprudence. No purpose is served by forcing lower courts—and speakers and governments—to guess whether City of Renton remains controlling law or whether Reed now provides the operative test. Whichever way the Court resolves this issue, it must be resolved.
C. This case provides an attractive vehicle to resolve the confusion.
This case is a good vehicle to clarify the Court's jurisprudence. The challenged law, which has been definitively interpreted by Georgia's highest court, clearly imposes burdens based on the content of expression: It taxes "adult entertainment establishments" which offer "entertainment" consisting of "nude or substantially nude persons . . . engaged in movements of a sexual nature." Ga. Code Ann. § 15-21-201(1)(A). The Georgia Supreme Court expressly relied on City of Renton's secondary effects framework to apply intermediate scrutiny and uphold the assessment. Pet. App. 15a–18a. Therefore, the continuing vitality and scope of City of Renton and its progeny in cases involving facially content-based regulation would be directly before this Court on certiorari. And there are no vehicle problems that would weigh against a grant. Cf. Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (Thomas, J., concurring in denial of cert.) ("I agree with the Court's decision not to take up this case because it involves unclear, preliminary questions about the proper interpretation of state law. But the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents.").
Conclusion
For the foregoing reasons, the petition for a writ of certiorari should be granted.
List of Amici Curiae
John Acevedo is Associate Dean of Students and Academic Programs and Visiting Associate Professor of Practice at Emory University School of Law. He is the author of Law's Gaze, 25 J. Gender Race & Just. 45 (2022), and The Model Speaks?: Obscenity Laws in the United States, in Gender and Justice: Theoretical Practices of Intersectional Identity 257 (Elaine Wood ed., 2020).
Thomas C. Arthur is Emory School of Law Distinguished Professor at Emory University School of Law. He is the author of The Problems with Pornography Regulation: Lessons from History, 68 Emory L.J. 867 (2019).
Loftus Becker is Professor of Law Emeritus at University of Connecticut School of Law. He is the author of Children's Rights vs. Adult Free Speech: Can They Be Reconciled?, 29 Conn. L. Rev. 893 (1997), and The Liability of Computer Bulletin Board Operators for Defamation Posted by Others, 22 Conn. L. Rev. 203 (1989).
Ashutosh A. Bhagwat is Distinguished Professor of Law and Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at University of California Davis School of Law. He is the author of In Defense of Content Regulation, 102 Iowa L. Rev. 1427 (2017), and Reed v. Town of Gilbert: Signs of (Dis)Content?, 9 N.Y.U. J. L. & Liberty 137 (2015).
Michael J. Broyde is Professor of Law at Emory University School of Law. He is the author (with Shlomo C. Pill) of The Concept of Human Rights in Judaism, in The Concept of Human Rights in Judaism, Christianity and Islam 19 (Catharina Rachik & Georges Tamer eds. 2023), and the editor (with John Witte, Jr.) of Human Rights in Judaism: Cultural, Religious, and Political Perspectives (1998).
Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at University of California Berkeley Law School. He is the author of Constitutional Law (7th ed. 2024) and Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court's Application, 74 S. Cal. L. Rev. 49 (2000).
Michael R. Dimino is Professor of Law at Widener University Commonwealth Law School. He is the author of It's My Party and I'll Do What I Want To: Political Parties, Unconstitutional Conditions, and the Freedom of Association, 12 First Amend. L. Rev. 65 (2014), and Political Speech, in Oxford Handbook of American Election Law 331 (Eugene D. Mazo ed. 2025).
Paul Finkelman is Visiting Professor of Law at University of Toledo College of Law. He is also the President William McKinley Distinguished Professor of Law and Public Policy Emeritus at Albany Law School. He is the author of Picture Perfect: The First Amendment Trumps Congress in Ashcroft v. Free Speech Coalition, 38 Tulsa L. Rev. 243 (2002), and Speech, Press and Democracy, 10 Wm. & Mary Bill Rts. J. 813 (2002).
Richard W. Garnett is Paul J. Schierl Professor of Law and Director of the Notre Dame Program on Church, State & Society at Notre Dame Law School. He is the author of Can There Really Be "Free Speech" in Public Schools?, 12 Lewis & Clark L. Rev. 45 (2008), and the editor (with Andrew Koppelman) of First Amendment Stories (2011).
Wes E. Henricksen is Associate Professor of Law at Barry University School of Law. He is the author of Disinformation and the First Amendment, 96 St. John's L. Rev. 543 (2021), and (with Broderick Betz) The Stolen Election Lie and the Freedom of Speech, 127 Penn. St. L. Rev. Penn Statim 111 (2023).
David L. Hudson Jr. is Associate Professor of Law at Belmont University College of Law. He is the author of The Content-Discrimination Principle and the Impact of Reed v. Town of Gilbert, 70 Case W. Res. L. Rev. 259 (2019), and The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, 23 Stanford L. & Pol'y Rev. 19 (2012).
Leslie Gielow Jacobs is Anthony Kennedy Professor of Law at University of the Pacific McGeorge School of Law. She is the author of Making Sense of Secondary Effects Analysis after Reed v. Town of Gilbert, 57 Santa Clara L. Rev. 385 (2017), and Clarifying the ContentBased/Content Neutral and Content/Viewpoint Determinations, 34 McGeorge L. Rev. 595 (2003).
Allen R. Kamp is Professor Emeritus of Law at University of Illinois Chicago Law School. He is the author of Constitutional Interpretation and Technological Change, 49 New Eng. L. Rev. 201 (2015), and Jurisprudence: A Beginner's Simple and Practical Guide to Advanced and Complex Legal Theory, 2 The Crit: Critical Stud. J. 62, 66 (2009).
Genevieve Lakier is Professor of Law and Herbert & Marjorie Fried Teaching Scholar at University of Chicago Law School. She is the author of Reed v. Town of Gilbert, Arizona, and the Rise of the Anti-Classificatory First Amendment, 2016 Sup. Ct. Rev. 233 (2017), and A CounterHistory of First Amendment Neutrality, 131 Yale L.J. Forum 873 (2022).
Paul E. McGreal is James L. Koley, JD'54, Professor of Constitutional Law at Creighton University School of Law. He is the author (with Charles W. Rhodes) of Skills & Values: The First Amendment (2022) and (with James J. Alifini) First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government's Interest, 157 U. Pa. L. Rev. PENNumbra 76 (2008).
Clare R. Norins is Clinical Associate Professor of Law at the University of Georgia School of Law and director of its First Amendment Clinic, which litigates challenges to content-based municipal policies. She is the author of Stitch Incoming: Lindke v. Freed's Impact on Social Media Blocking Litigation, 82 Wash. & Lee L. Rev. Online 172 (2024), and Campbell v. Reisch: Dangers of the Campaign Loophole in Social Media Blocking Litigation, 25 U. Pa. J. Const. L. 146 (2023).
Michael J. Perry is Robert W. Woodruff Professor of Law Emeritus at Emory University School of Law. He is the author of Constitutional Rights as Human Rights: Freedom of Speech, Equal Protection, and the Right of Privacy, 57 Wake Forest L. Rev. 931 (2022).
Stacey L. Sobel is Professor of Law and Associate Dean for Research & Faculty Development at Western State College of Law at Westcliff University. She is the author of 303 Creative v. Elenis, in SCOTUS 2023: Major Decisions and Developments of the U.S. Supreme Court 63 (Morgan Marietta & Howard Schwerber eds. 2024).
Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School. She is the author of Free Speech: What Everyone Needs to Know® (2023) and HATE: Why We Should Resist It with Free Speech, Not Censorship (2018).
Tyler Valeska is Assistant Professor of Law at Loyola University Chicago School of Law. He is the author of Speech Balkanization, 65 B.C. L. Rev. 903 (2024), and First Amendment Limitations on Law Enforcement Livestreaming Protests, 121 Colum. L. Rev. Forum 8 (2021).
Eugene Volokh is Thomas M. Siebel Senior Fellow at the Hoover Institution and Gary T. Schwartz Distinguished Professor of Law Emeritus at UCLA School of Law. He is the author of The First Amendment and Related Statutes: Law, Cases, Problems and Policy Arguments (8th ed. 2024) and Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277 (2005).
Timothy Zick is Robert & Elizabeth Scott Research Professor and John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author of The First Amendment: Cases and Theory (4th ed. 2022) and Managed Dissent: The Law of Public Protest (2023).