Sammy's v. City of Mobile

Appellant
Sammy's of Mobile, Alabama
Appellee
City of Mobile, Alabama
Appellant's Claim
That a city ordinance prohibiting establishments that featured nude dancing from selling alcohol was unconstitutional.
Chief Lawyer for Appellant
Donald M. Briskman
Chief Lawyer for Appellee
Roderick P. Stout
Judges for the Majority
Stanley F. Birch, James C. Hill (writing for the majority)
Judges Dissenting
Phyllis A. Kravitch
Place
Atlanta, Georgia
Date of Decision
8 May 1998
Decision
The court ruled in favor of the city of Mobile and its ordinance.
Significance
This ruling affirmed the reasoning behind laws that prohibit alcohol from being served at establishments where there is also entertainment of a sexual orexplicit nature. The Eleventh Circuit Court in Atlanta, Georgia, found that this particular ordinance was not in violation the First Amendment's clause regarding freedom of speech.
The Origins of the Case
In a prior decision for Sammy's v. City of Mobile, an Alabama court had ruled in the city's favor. It upheld an ordinance passed by Mobile's lawmaking body that prohibited establishments that served alcohol from offering topless or nude entertainment. The bars in Mobile that featured such activity then gave up their liquor licenses with the enactment of the ordinance. But a handful of clubs sued the city, led by a venue called "Sammy's," claiming theordinance was unconstitutional. The decision of the U.S. District Court for the Southern District of Alabama was appealed to the Court of Appeals of the Eleventh Circuit. Part of the arguments in the trial hinged upon whether nudedancing was a form of "expressive conduct," and as such would be protected under the free speech clause of the First Amendment.
Ordinance No. 03-003
Elected legislative leaders of Mobile, Alabama, passed an ordinance enacted in February of 1996. This ordinance prohibited topless as well as nude dancingin any establishment that also possessed a liquor license to sell alcohol for consumption on the premises. The statute declared that the presence of bothnude dancing and public consumption of alcohol "encourages undesirable behavior and is not in the interest of the public health, safety, and welfare."
Sammy's was the name of one such Mobile establishment that offered "exotic dancing" as well as alcoholic beverages. The Candy Store was another venue involved in this case. When the new ordinance went into effect, Sammy's voluntarily gave up its liquor license, and continued to feature topless and nude dancing. The Candy Store, however, did not surrender its liquor license, and served drinks to customers who were there to watch the women perform. Law enforcement authorities had not yet raided The Candy Store for this violation, but had indicated a tentative plan to do so.
Sammy's sued the city of Mobile in an Alabama state court for "injunctive relief"--the invalidation of the ordinance. The Candy Store filed suit in federal district court that requested both injunctive relief and damages. The two cases were combined and heard in federal district court, which ruled in favorof the city. The court found the law did not violate the First Amendment. Thecase was appealed, and in the spring of 1998 the Court of Appeals for the Eleventh Circuit heard arguments from both sides on the matter.
Arguments Focused on Freedom of Expression
Attorneys for Sammy's argued that the Mobile ordinance banning topless dancing in places that sold liquor was invalid for a number of reasons. Primarily,it asserted that it was in conflict with the Free Speech Clause of First Amendment, which holds:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridgingthe freedom of speech, or of the press; or the right of the people peaceablyto assemble, and to petition the government for a redress of grievances.

In other words, a law that prohibited an establishment that featured nude or topless dancing from serving alcohol was actually a restriction onthe nude and topless dancing. As one justice pointed out, "the Constitution does confer a right to be free from government regulation that prohibits expressive conduct on the basis of content." The legal team for The Candy Store put forth a similar case. They argued that dancing of all forms was a form of expressive conduct and could not be restricted.
Past Legal Decisions Cited
Several cases were used as precedent to decide in favor of the city of Mobileand the constitutionality of its ordinance. Firstly, there was the U.S. Supreme Court decision California v. LaRue (1972) that affirmed the rightof the state to prohibit the sale of alcohol under certain conditions. The circuit court also used the Barnes-O'Brien test, named after two U.S. Supreme Court decisions, United States v. O'Brien (1968) and Barnes v. GlenTheatre, Inc. (1991).
The Barnes-O'Brien test is used to determine whether a law is in violation ofthe First Amendment. It consists of a four-part test: Is the law in question"within the constitutional power of the government"? Does it further "an important or substantial government interest"? Is the government's aim in the particular ordinance "unrelated to the suppression of free expression"? And, finally the Barnes-O'Brien test renders the law valid "if the incidental restriction on alleged First Amendment freedoms is no greater than is essential tothe furtherance of that interest."
In the case of Sammy's and The Candy Store, the city of Mobile argued that itwas not attempting to censor nude dancing, but rather aimed to curtail its possible secondary effects. Public safety records and investigations had shownthat there was indeed a justifiable line of reasoning for Mobile's ordinance. Under the Barnes-O'Brien test, the ordinance was determined to be within the realm of the city's powers, and that it furthered the city's interest in reducing undesirable behavior resulting from the mix of nude dancing and alcohol consumption. More significantly, the court determined that Mobile's new lawwas not a judgment against nude dancing, since it did not restrict the practice in any way. The actual case of Barnes was cited by Justice Hill inhis decision. "The [U.S. Supreme] Court rejected the argument that merely because nude dancing may have some expressive content, an ordinance prohibitingsuch dancing must be aimed at the suppression of that content," Hill wrote in his opinion. " . . . In prohibiting nude dancing where liquor is sold, theordinance restricts only the place or manner of nude dancing without regulating any particular message it might convey."
As Justice Hill wrote, Mobile's ordinance "does not seek to ban bars or nudedancing. Everyone can still buy a drink and watch nude dancing in Mobile. They cannot, however, do both in the same place. The dissent seems to believe this may violate the rights of the people of Mobile, but we are unaware of anyconstitutional right to drink while watching nude dancing."
Related Cases

• United States v. O'Brien, 391 U.S. 367 (1968).
  
• California v. LaRue 409, 409 U.S. 109 (1972).
  
• Barnes v. Glen Theatres, Inc., 501 U.S. 560 (1991).