A couple of weeks ago, I filed a cert petition in Georgia Ass’n of Club Executives v. Georgia and Georgia Ass’n of Club Executives v. O’Connell. (For procedural reasons, these were filed as two separate cases, but they raise identical issues, and the Georgia Supreme Court decided them in a combined opinion.)
Together with the team at Freed Grant LLC, we challenged a Georgia statute imposing a tax on adult entertainment establishments, a group of businesses defined in a content-discriminatory way, based on whether “[t]he entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation . . . .” Our position was that, as a content-discriminatory enactment, this tax should be evaluated under strict scrutiny—and should fail because the government could have raised the same amount of taxes in a non-content-discriminatory way, out of general revenues.
This case should be of interest even if you’re not interested in adult entertainment (indeed, even if you’re hostile to adult entertainment). The big question here is whether a facially content-discriminatory enactment (that would otherwise be evaluated under strict scrutiny) should be considered content-neutral (and thus evaluated under intermediate scrutiny) if it has a content-neutral justification. This means this case is closely related to the abortion-clinic buffer-zone cases that rely on Hill v. Colorado—and, as you may have read on this blog (here or here), the Supreme Court has recently denied cert in a case that presented the issue of whether to overruled Hill.
Hopefully the Supreme Court will consider our cert petition sometime in March or April. I’m reprinting the main text of the introductory part of our cert petition below (some portions and citations omitted). If you want to write an amicus brief, you have until March 20 to file one—let me know by personal message if you’re interested! If you want to read the whole thing in its beautiful formatted form (thanks to Counsel Press), you can click here.
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Question Presented
A Georgia statute imposes a tax that, on its face, singles out businesses defined by the content of their expression; the State seeks to justify the tax by the need to address “secondary effects.” Is this tax subject to strict scrutiny under the First Amendment because it is facially content-discriminatory, as recently reaffirmed by Reed v. Town of Gilbert, 576 U.S. 155 (2015), or does a content-neutral rationale make the tax subject to intermediate scrutiny under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)?
Statutory Provisions Involved
Ga. Code Ann. § 15-21-201(1) provides, in relevant part:
(1) “Adult entertainment establishment” means any place of business or commercial establishment where alcoholic beverages of any kind are sold, possessed, or consumed wherein:
(A) The entertainment or activity therein consists of nude or substantially nude persons dancing with or without music or engaged in movements of a sexual nature or movements simulating sexual intercourse, oral copulation, sodomy, or masturbation . . . .
Ga. Code Ann. § 15-21-209 provides, in relevant part:
(a) By April 30 of each calendar year, each adult entertainment establishment shall pay to the commissioner of revenue a state operation assessment equal to the greater of 1 percent of the previous calendar year’s gross revenue or $5,000.00. This state assessment shall be in addition to any other fees and assessments required by the county or municipality authorizing the operation of an adult entertainment business. . . .
(c) The assessments collected pursuant to this Code section shall be remitted to the Safe Harbor for Sexually Exploited Children Fund Commission, to be deposited into the Safe Harbor for Sexually Exploited Children Fund.
Statement
This Court has long held that content-discriminatory (i.e., content-based) governmental enactments must satisfy strict scrutiny; a content-neutral justification cannot transform a facially content-discriminatory enactment into a content-neutral one. This principle goes back several decades. See, e.g., Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987); Simon & Schuster v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). And this Court has recently strongly reaffirmed this principle. See Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); Barr v. Am. Ass’n of Polit. Consultants, 591 U.S. 610, 618 (2020) (plurality opinion) [hereinafter AAPC].
However, in other cases, this Court has stated that even a facially content-discriminatory regulation can be treated as a content-neutral “time, place, and manner restriction” and evaluated under intermediate scrutiny, so long as it is justified without reference to content. This rule has been stated in the context of adult entertainment, where the government’s claimed justification has been the need to combat “secondary effects.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). But this “content-neutral justification” rule has since grown to be applied in very different areas—for instance, the regulation of sound amplification in a municipal park, see Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989), and abortion-clinic buffer zones, see Hill v. Colorado, 530 U.S. 703, 719 (2000).
And this Court has assumed the validity of the content-neutral justification rule in even more areas—the regulation of political protests near foreign embassies, see Boos v. Barry, 485 U.S. 312, 320 (1988), the regulation of the display of symbols that arouse anger based on factors such as race, see R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992), and the regulation of newsracks, see City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430 (1993). In some of these cases, the precise doctrinal statement has not made a difference (the regulation in Ward, for instance, would have been content neutral under any standard), but in other cases (such as City of Renton and Hill), the reliance on the content-neutral justification theory made a real difference to the bottom line.
These two lines of doctrine are inconsistent. Or, at least, they are in substantial tension with each other. Perhaps each doctrine is valid within its own domain—but it is unclear what these domains are. Clearly, the content-neutral justification rule is not limited to the handful of assorted areas where those cases arose, including adult entertainment and abortion-clinic buffer zones. Nor is that framework always used for all cases within those areas. In United States v. Playboy Entertainment Group, 529 U.S. 803 (2000), this Court applied strict scrutiny in an adult-entertainment context. And in McCullen v. Coakley, 573 U.S. 464 (2014), this Court applied intermediate scrutiny in an abortion-clinic buffer-zone context without relying on the City of Renton/Hill reasoning, endorsing the facial approach that it would later strongly restate in Reed. Id. at 479-81.
The City of Renton framework was developed in a zoning and land-use context, and its rationale has been closely tied to the justifications for zoning and land-use regulation; indeed, this Court has described City of Renton and its progeny as “[o]ur zoning cases.” Playboy, 529 U.S. at 815. And yet, lower courts—including the Georgia Supreme Court in this case, and the Texas Supreme Court in a similar case, Combs v. Tex. Entm’t Ass’n, 347 S.W.3d 277, 286 (Tex. 2011)—have extended the content-neutral justification rule, even after Reed. These courts have applied City of Renton to facially content-discriminatory taxes, even though there is no precedent from this Court for extending the City of Renton/Hill doctrine that far. There has also been confusion among lower courts about the fate of City of Renton after Reed. Some have assumed that City of Renton is still good law; others have held that some of their pre-Reed case law that relied on City of Renton has been abrogated.
This Court should grant certiorari in this case to resolve this confusion among lower courts and to prevent courts from diluting the Reed doctrine by an unjustified expansion of City of Renton/Hill analysis. This case presents the content-neutral justification reasoning cleanly, without any of the vehicle problems that may have led this Court to deny certiorari in recent cases that presented the issue in the context of abortion-clinic buffer zones, like Bruni v. City of Pittsburgh, 141 S. Ct. 578 (2021) (mem.) (denying certiorari), Vitagliano v. County of Westchester, 144 S. Ct. 486 (2023) (mem.) (denying certiorari), and Reilly v. Harrisburg, 144 S. Ct. 1002 (mem.) (2024) (denying certiorari). See Bruni, 141 S. Ct. at 578 (Thomas, J., respecting denial of certiorari) (“[T]he Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents” between the Reed/McCullen and Hill frameworks).
There are at least three ways that this Court could clarify the doctrine.
First, this Court could overrule City of Renton/Hill intermediate scrutiny as being inconsistent with the Reed rule of strict scrutiny. After all, this Court has already stated that Hill is a “distort[ion]” of “First Amendment doctrines,” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 287 & n.65 (2022), and the Hill problem extends to City of Renton and other cases as well. As some of this Court’s Justices have noted, this Court’s intervening decisions have “all but interred” Hill, rendering it “an aberration in [the Court’s] case law.” City of Austin, 596 U.S. at 91-92, 103-04 (2022) (Thomas, J., joined by Gorsuch & Barrett, JJ., dissenting); Bruni, 141 S. Ct. at 578 (Thomas, J., respecting denial of certiorari) (noting that the Court’s use of intermediate scrutiny in Hill “is incompatible with current First Amendment doctrine” (quoting Price v. City of Chicago, 915 F.3d 1107, 1117 (7th Cir. 2019))).
Moreover, Hill has been criticized ever since it was decided, even by commentators who support abortion rights. See, e.g., Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application, 74 S. Cal. L. Rev. 49, 59 (2000); Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp. L. Rev. 723, 737-38 (2001). Much of the critique of the Hill reasoning is a critique of the entire content-neutral justification rule; this case would thus allow this Court to clarify that strict scrutiny is the rule in all these diverse areas.
Second, this Court could clarify that the City of Renton reasoning is strictly limited to the zoning and land-use context in which it arose. The City of Renton reasoning would thus no longer be available to support regulations that have nothing to do with land use (such as abortion-clinic buffer zones), and certainly would not be available to support non-regulatory enactments, such as the tax at issue in this case.
Third, this Court could clarify that, however far the City of Renton reasoning extends, it certainly does not apply to taxation. This option would retain the City of Renton reasoning for regulatory cases of various kinds (perhaps including buffer zones), but would prevent the expansion of the secondary effects doctrine to taxation—an expansion that would be inconsistent with cases like Arkansas Writers’ Project and that could substantially undo the Reed rule of strict scrutiny.
Either way, this Court has been right to stress the general rule that content discrimination is highly suspect and that strict scrutiny is the norm in such cases, even when the government asserts content-neutral justifications. “The vice of content-based legislation—what renders it deserving of the high standard of strict scrutiny—is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.” Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 794 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part). The City of Renton/Hill exception should not continue to expand to erode or swallow up this salutary rule.
1. The State Operation Assessment
In 2015, the Georgia Legislature passed a tax—labeled a “state operation assessment”—on “adult entertainment establishment[s].” Ga. Code Ann. §§ 15-21-209, -201(1)(A). The purpose of the tax was to fund the Safe Harbor for Sexually Exploited Children Fund (“Safe Harbor Fund”), the primary purpose of which “is to disburse money to provide care and rehabilitative and social services for sexually exploited children.” Id. § 15-21-202(c).
The category of “[a]dult entertainment establishment” was defined, in part, in a way that facially discriminates based on content: an establishment could qualify by having “entertainment” that “consists of nude or substantially nude persons . . . engaged in movements of a sexual nature” or simulating specified sexual activities. Id. § 15-21-201(1)(A).
2. The Georgia Trial Court Opinion
Petitioner Georgia Association of Club Executives, an organization of adult entertainment clubs in Georgia, sued to enjoin the collection of the tax. After some initial litigation, petitioner filed new complaints in the Georgia trial court against the State of Georgia and the Commissioner of the Georgia Department of Revenue (now Frank O’Connell), arguing that the tax violated the First Amendment. The cases against the State of Georgia and against Revenue Commissioner O’Connell were separate but raised substantively identical issues.
First, petitioner argued that the tax was content discriminatory and therefore had to be evaluated under strict scrutiny. Petitioner conceded that the State’s interest, fighting child sexual exploitation, was compelling. But the tax could not satisfy strict scrutiny because there existed a less discriminatory alternative: funding the Safe Harbor Fund out of general revenues. The tax did not fall within the City of Renton exception. The City of Renton secondary effects doctrine has always been a limited exception to the general rule that content-discriminatory enactments are subject to strict scrutiny; and City of Renton, which was developed in a land use and zoning context, does not apply to taxes.
Next, petitioner argued that even if the tax were evaluated under intermediate scrutiny, it would still fail, because it would still have to be “narrowly tailored to serve a significant governmental interest.” See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94 (1984). In the intermediate scrutiny context, narrow tailoring merely requires that an enactment “promote[] a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 (internal quotation marks omitted). But the only interest ever asserted by the State was to raise revenue to fund the programs that fell within the purpose of the Safe Harbor Fund. And, because that interest would be served just as effectively if the money were raised from general revenues, the tax failed narrow tailoring even in the context of intermediate scrutiny. Moreover, petitioner argued, the tax failed intermediate scrutiny for the additional reason that the evidence relied on by the Legislature was woefully insufficient to establish a rational connection between adult entertainment establishments and child sexual exploitation.
Finally, petitioner raised an overbreadth challenge.
In the case against Revenue Commissioner O’Connell, the Georgia trial court (adopting verbatim respondents’ proposed order) upheld the tax, ruling that strict scrutiny did not apply, that the tax satisfied intermediate scrutiny, and that the tax was not overbroad. In the (substantively identical) case against the State of Georgia, the Georgia trial court incorporated all of its legal reasoning from the case against the Commissioner.
3. The Georgia Supreme Court Opinion
Petitioner appealed both cases to the Georgia Supreme Court. In a combined opinion, the Georgia Supreme Court affirmed the trial court by a vote of 7-1.
First, the court held, relying on City of Renton, that the tax was content neutral because it was aimed at the suppression of secondary effects, and that it was therefore not subject to strict scrutiny.
Second, the court assumed that the tax was subject to intermediate scrutiny and held that it met that standard. Though the State had only asserted a bare revenue-raising interest, the court recharacterized the State’s interest, asserting that “implicit within the State’s interest is an element of seeking not to burden taxpayers in general with the costs of remedying the harm that the adult entertainment industry causes.” That interest was “important” within the meaning of intermediate scrutiny. And, the court said, deferring to the State’s empirical studies, the tax furthered that interest. The State’s interest was unrelated to suppressing free expression. And the tax’s burden on expression was incidental and promoted the State’s interest (as recharacterized) more effectively than if the money came from general revenues.
Third, the court held that the tax was not overbroad.
Justice Warren dissented. She agreed with the majority that the tax should be considered content neutral in light of City of Renton, and she wrote that the tax should thus be analyzed under intermediate scrutiny. But she disagreed with the majority on how to characterize the State’s interest. She argued that the State’s interest was merely raising revenue; the State’s supposed interest in targeting the tax at the industry responsible for the secondary effects was not one that it had ever argued. In her view, this recharacterization “undermine[d] . . . the four-prong test [of United States v. O’Brien, 391 U.S. 367 (1968)] and create[d] potential work-arounds for government entities to target protected expression.” When the State’s interest was properly viewed as the interest in raising revenue, it failed narrow tailoring because of the availability of generally applicable taxes.
The Georgia Supreme Court denied reconsideration in the two cases.
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Well, that’s the introductory material from the cert petition—read the whole thing.
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