Sammy's v. City of Mobile

Several cases were used as precedent to decide in favor of the city of Mobile and the constitutionality of its ordinance. Firstly, there was the U.S. Supreme Court decision California v. LaRue (1972) that affirmed the right of 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. Glen Theatre, Inc. (1991).

The Barnes-O'Brien test is used to determine whether a law is in violation of the 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 to the furtherance of that interest."

In the case of Sammy's and The Candy Store, the city of Mobile argued that it was not attempting to censor nude dancing, but rather aimed to curtail its possible secondary effects. Public safety records and investigations had shown that 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 law was 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 in his decision. "The [U.S. Supreme] Court rejected the argument that merely because nude dancing may have some expressive content, an ordinance prohibiting such dancing must be aimed at the suppression of that content," Hill wrote in his opinion. " . . . In prohibiting nude dancing where liquor is sold, the ordinance 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 nude dancing. 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 any constitutional right to drink while watching nude dancing."