Federal appeals panel thumps state agency’s effort to thwart art show

Thursday, March 9, 2000

Officials from the California Department of Alcoholic Beverage Control violated the First Amendment when they threatened to pull the liquor license from a city convention center in order to halt an exhibition of non-obscene art, a federal appeals court panel has ruled.

Lifestyles Organization, Limited planned to hold an art and trade show at the Palm Springs Convention Center from July 31 to Aug. 2, 1997. The annual meeting included an exhibition of sensual and erotic art.

Several alcohol control officials threatened to revoke the convention center’s liquor license if the art and trade show proceeded — even if no alcohol would be served at the art exhibit. Officials also met with other liquor licensees — several hotels which were hosting art convention events — to discuss possible sanctions for violating California law.

State officials said that holding the art exhibit on the premises of a liquor licensee would violate California law, which prohibits the “showing of film, still pictures, electronic reproductions or other visual reproductions depicting … any person being touched, caressed or fondled on the breast, buttocks, anus or genitals …[or] drawings … to portray, any of the prohibited activities described above” on a liquor licensee’s premises.

On July 28, 1997, Lifestyles sued in federal court, seeking a temporary restraining order to prevent state officials from shutting down the art exhibition. The next day, a federal judge granted the temporary restraining order allowing the exhibition and trade show to take place.

After the event, the federal judge closed the matter, finding that there was no need to issue a preliminary injunction because the event had already taken place.

However, Lifestyles filed an amended complaint, alleging that it was entitled to an order preventing California alcohol control officials from interfering with future events. The group also asked the federal court to declare the actions of the officials unconstitutional under the First Amendment.

In September 1997 and October 1998, the federal court issued orders, finding that Lifestyles was not entitled to an injunction preventing future acts nor a declaration that the government actions were unconstitutional. The court determined that the organization did not have standing to seek these actions and also found that the officials were entitled to qualified immunity because they had not violated any clearly established constitutional rights.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals reversed the lower court’s orders in LSO, Ltd. v. Stroh. The 9th Circuit determined that LSO had “incurred various costs arising from the officials’ alleged interference with the 1997 convention.”

Even though the officials threatened the license holders and not specifically Lifestyles, the appeals court noted that the actions sought to prohibit the organization’s display of constitutionally protected material.

“When the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing,” the 9th Circuit wrote in its March 6 opinion.

The court found that Lifestyles had demonstrated a “realistic threat” that the officials could engage in the same conduct. The appeals court pointed out that “LSO has already engaged in self-censorship” by canceling plans to hold similar exhibitions in the state.

The appeals panel also rejected the lower court’s finding that the state officials were entitled to qualified immunity.

The 9th Circuit wrote that “it was clearly established [in 1997] that liquor regulations could not be used to impose restrictions on speech that would otherwise be prohibited under the First Amendment.”

In reaching this conclusion, the 9th Circuit cited the U.S. Supreme Court’s 1996 decision in 44 Liquormart, Inc. v. Rhode Island. The high court wrote in that case that the 21st Amendment, which repealed prohibition and gave states power to regulate alcoholic beverages, “does not license the States to ignore their obligations under other provisions of the Constitution.”

The 9th Circuit concluded that “in 1997 no reasonable official could have believed that …[state law] … could constitutionally be employed to impede LSO’s right to display non-obscene art on the premises of an ABC licensee.”

“The Ninth Circuit’s decision casts a fatal blow to the Department of Alcoholic Beverage Control’s efforts to censor art,” said American Civil Liberties Union staff attorney Peter Eliasberg in a news release.

The attorney who argued the case before the 9th Circuit for the defendants could not be reached for comment.