Federal appeals panel: Georgia county can bar mixing of alcohol, nudity
A Georgia county ordinance prohibiting nude-dancing businesses from
serving alcohol does not violate the First Amendment, a federal appeals court
panel has ruled.
In 1997, Athens-Clarke County officials adopted an ordinance which
provided that no adult entertainment license could be issued to any business
that served alcohol.
Later that year, several nude-dancing businesses, including Wise
Enterprises, Inc., sued in federal court, contending that the ordinance
restricted their free-expression rights.
In 1999, a federal district court dismissed the lawsuit and found the
ordinance constitutional. On appeal, the 11th U.S. Circuit Court of Appeals
agreed with the lower court in Wise Enterprises,
Inc. v. Unified Government of Athens-Clarke County.
The clubs argued that the ordinance was content-based and had been
passed because of a distaste for nude dancing. However, the panel determined
that the ordinance was content-neutral.
“The ordinance does not attempt to regulate any potential
communicative elements of nude dancing, nor does it limit the number of
establishments where nude dancing can occur,” the panel wrote in its July 13
The panel analyzed the constitutionality of the ordinance pursuant to
the test established by the U.S. Supreme Court in its 1968 decision
United States v. O’Brien. In O’Brien, the Court said that
ordinances regulating both conduct and speech could be analyzed under an
intermediate level of judicial scrutiny. Under the O’Brien test, a regulation is constitutional
- It serves a substantial governmental interest.
- It furthers the substantial interest.
- The government interest is unrelated to the suppression of free expression.
- Its restriction on expression is no greater than necessary.
The panel determined that the county ordinance satisfied all four
elements of the O’Brien test.
“There is no evidence in the record that the County passed the
ordinance to discourage nude dancing or to hinder the communicative aspects of
such conduct,” the panel wrote.
The judges determined that county officials had passed the ordinance
to address the harmful, secondary effects associated with mixing alcohol and
The panel also relied on the U.S. Supreme Court’s
recent nude-dancing decision in
City of Erie v. Pap’s A.M. for the
proposition that the county law was content-neutral and constitutional.
The panel cited Pap’s for
the proposition that “a regulation which furthers legitimate government
interests unrelated to the message conveyed by nude dancing should be deemed
content-neutral, even if the regulation has an incidental impact on protected
Calls to attorneys on both sides were not returned.