CALIFORNIA v. LARUE

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Argument of L. Stephen Porter

Chief Justice Warren E. Burger: -- now in number 71-36, California against LaRue.

Mr. Porter.

Mr. L. Stephen Porter: Mr. Chief Justice and may please the Court.

This case involves two regulations of the California Department of Alcoholic Beverage Control which provide that a California state on sale alcoholic beverage license may not be held on premises for the sale and consumption of alcohol where certain sexually oriented acts, conducts or visual displays are employed on the premises.

The regulations were enacted after legislative hearings before the California department of Alcoholic beverage Control.

Now it was developed that these hearings, first that alcoholic access would be present upon the control centers of the brain which normally inhibit the so-called base behaviors and that persons consuming alcohol may and do engage in acts and conduct which they would not engage in, if not drinking.

Secondly, it was developed that persons under the influence of alcohol are more likely to be sexually stimulated by viewing sexual material, sexual conduct and acts and that they are more likely to engage in sexual activity or conduct on premises which afford or offer such sexually oriented entertainment.

Thirdly --

Justice Potter Stewart: How does this litigation arise, is it an action for a declaratory judgment and an injunction by the --

Mr. L. Stephen Porter: By certain licensees, attack both in the State and the Federal courts in California the regulations on the basis that they were invalid is infringing upon the First Amendment rights that the --

Justice Potter Stewart: The licenses were the plaintiffs though?

Mr. L. Stephen Porter: Licensees and certain employees, dancers and some of the licensees were the plaintiffs.

Justice Potter Stewart: Asking for the declaratory judgment that these regulations are invalid?

Mr. L. Stephen Porter: Invalid and to enjoin.

Justice Potter Stewart: And to enjoin their enforcement?

Mr. L. Stephen Porter: That's correct.

Justice Potter Stewart: Has there been any license revocation proceedings against any of these plaintiffs?

Mr. L. Stephen Porter: The regulations become effective in number of days after their promulgation and enactment and placement in the California in the administrative code.

Before their effective date, these actions were brought, both in the State Courts and in the Federal District Court.

The Federal District Court in Los Angeles withheld the action pending action by the state courts.

The California State courts refused to hear the cases, refused to enjoin the regulation.

Justice Potter Stewart: I wondered if there were Younger problem in this case, Younger against Harris, are you familiar with that case and it's companions?

Mr. L. Stephen Porter: Not completely, there was no -- I am not familiar with it.

Justice William J. Brennan: Well you said the State Courts refused to what render either a declaratory injunction or a declaratory judgment or injunction relief?

Mr. L. Stephen Porter: Yes, the action for declaratory relief and injunction was brought in the State courts.

State courts refused, the plaintiffs went through the California Court of Appeals.

Justice William J. Brennan: When you say refuse, you mean dismissed the proceedings?

Mr. L. Stephen Porter: These were on petitions.

Regulations and/or decisions of the California Department of Alcoholic Beverage Control are reviewable either by petitions for writ to review in the California Appellate Courts or under a type of hybrid writ of mandate proceeding, which would be similar to declaratory relief to check the validity of the regulations, but it is discretionary with the California Appellate Courts whether or not they entertain.

Justice William J. Brennan: And discretion was exercised against entertaining the proceedings?

Mr. L. Stephen Porter: Against entertaining --

Justice William J. Brennan: And not appeal, that was sustained, is that?

Mr. L. Stephen Porter: The plaintiffs then went to California Supreme Court and our office requested that the State Supreme Court take the case and take the challenge and decide it.

The State Supreme Court refused, denied --

Justice William J. Brennan: Well, then I take it as the case is here so far as the action of three-judge, Federal Three-judge Court is concerned, there is no pending state proceeding and can be none because the state courts have refused entertainment, is that it?

Mr. L. Stephen Porter: That's correct.

Justice Harry A. Blackmun: Mr. Porter do draw any inference whatsoever from the refusal of the California Courts to take these cases up?

Mr. L. Stephen Porter: Only one perhaps in all honesty.

Just prior to these regulations being enacted, there was a case in the California Courts, Boreta Enterprises versus the Department of Alcoholic Beverage Control, case decide by the California Supreme Court.

That case which came up before these regulations, involved the employment topless waitresses in a San Fransisco Bar.

Justice Harry A. Blackmun: I understand that they in effect invited the department to issue, who formulate regulations of this kind?

Mr. L. Stephen Porter: That is correct, they were disturbed according to their decision by the fact that there was no evidence, there were no regulations, just a sterile stipulation that topless waitresses were employed.

Justice Harry A. Blackmun: And so I repeat my other question.

You draw any inference from the Courts not taking these cases on, distinct or --

Mr. L. Stephen Porter: That perhaps they just had a case where there was no evidence in the record, no regulations involved and they did not want to take on a subsequent case in the absence of what they might thought was an absence of the evidentiary record.

Justice Harry A. Blackmun: You don't infer that the in the eyes of the State Courts, the regulations are perfectly valid?

Mr. L. Stephen Porter: That's possible, I would not --

Justice Harry A. Blackmun: You would not draw that inference?

Mr. L. Stephen Porter: I will not draw that inference.

Chief Justice Warren E. Burger: Mr. Porter, do you regard this case as essentially a licensing case or an obscenity case per se?

Mr. L. Stephen Porter: Licensing.

As indicated, the hearing, the legislative hearing before the Department of Alcoholic Beverage Control developed the effective alcohol upon persons imbibing in it and also developed through the testimony of various Law enforcement officials in California through department of investigators that the sex -- this type of sexually oriented entertainment is provided on premises where alcoholic beverages were sold and consumed on the premises, that the resultant problems on such premises, including overt sexual act between the employees and the entertainers and the customers, B girl activity, as indicated by officials from San Francisco Police Department, where in 1964 they had almost come to nil on B Girl activity, the introduction of the sexually oriented entertainment in On Sale bars in San Francisco and college B Girl activity to reach almost epidemic proportions.

Prostitution increased around such premises where you have this mixture, the prostitutes congregating where you have this sexually oriented entertainment, sexually stimulating entertainment plus the customers imbibing in alcoholic beverages.

Narcotic and drug problems increased at or near such premises, violent crimes, exploitation of customers, overt sex crimes, (Inaudible) and temperance, serious and extensive law enforcement problems, we have set out in the briefs.

Accordingly the California Department of Alcoholic Beverage Control adopted these regulations in order to try and prevent these serious problems and offenses that were occurring on the licensed alcoholic beverage premises in California.

As indicated, the regulations were tacked by various licensees in Los Angeles and Southern California area, both in State and Federal Courts, and when the State Courts refused to entertain these cases the three-judge Federal District Court in Los Angeles heard the case.

On a two to one decision, the lower Court held, relying on Roth and other obscenity cases, decisions by this Court.

The Lower Court held that the sexual acts and conducts and this visual displays that were prescribed by the department regulations were protected expression under the First Amendment and that the State could regulate them only on the grounds of obscenity.

That in is much as the department regulations did not deal with obscenity, they did not require standards of proof as to obscenity, the regulation must fall.

In addition, we would note that its clear, if one reads a lower court's decision, that they took the position that regardless of the alleged purpose of the department in enacting regulations that they assumed and determined that the department's motive was to circumvent the obscenity laws and not to try and prevent the problems which the legislative record had shown.

The Department of Alcoholic Beverage Control argument is three-fold.

First that the sexual activities and sexual conduct regulated by these regulations are not and do not constitute symbolic speech.

They are not and do not constitute expression and are not within the protection of the First Amendment.

Secondly that even if this Court should determine that they are within the First Amendment, that a state may regulate the First Amendment activity on grounds or interest other than obscenity; that obscenity is not the sole touchstone the state is required to use in attempts to regulate First Amendment activity.

Justice William H. Rehnquist: Mr. Porter, does your argument here, does it based it all on the Twenty-first Amendment, dealing with the state authority over regulation of alcoholic beverages?

Mr. L. Stephen Porter: Based to the extent that if we are in our First Amendment area, then as far as balancing the state’s interest, we submit that both the traditional power that a state has had over the conditions surrounding the sale of alcoholic beverages and the power given to the states under the Twenty-first Amendment must be considered in balancing the state interest that these are substantial and important state interests, where we are talking about the condition surrounding the sale and consumption of alcoholic beverages.

We have never argued, nor would we ever argue that the Twenty-first Amendment would automatically override the First Amendment or any other part of the Constitution.

We only urge that --

Justice Potter Stewart: Well, it has been held at the Twenty-first Amendment -- has overrode a great deal of the Commerce Clause.

Isn't it?

Mr. L. Stephen Porter: Well --

Justice Potter Stewart: And it does by its terms?

Mr. L. Stephen Porter: That's correct, but I --

Justice Potter Stewart: And it has been held that the Twenty-first Amendment overrode a good deal of the Equal Protection Clause of the Fourteenth Amendment, isn’t it, as was in the Young's case?

Mr. L. Stephen Porter: Yes, but I would submit that I would myself attempt to temper that somewhat to the extent.

I think it shows an overriding state interest in weighing between the Commerce Clause and the Twenty-first Amendment where you get up an equal protection, you get up and so the First Amendment or some so called alleged preferred clauses or amendments of the Constitution; as I say, we do not argue that it overrides the First Amendment, but if we are dealing in a First Amendment area that a great weight should be given to state’s interest and power under the Twenty-first Amendment in balancing and weighing whether the state interests outweigh the interest to be protected under the First Amendment.

Justice William J. Brennan: Well, I gather Mr. Porter, that one your part at least, there is alternative argument, isn't it?

Your basic argument is that there is no First Amendment right involved here at all?

Mr. L. Stephen Porter: That's correct.

And thirdly, we argue that a Federal Court may not enjoin or invalidate otherwise valid regulations on the grounds that it believes a bad motive influenced the regulations.

Now, first of all is to, this not being First Amendment activities, we submit that public and commercial acts such as masturbation or copulation, sodomy, exposure of the genitals do not constitute symbolic speech or expression and that such acts and conduct do not contain a recognizable significant speech element entitling them to First Amendment protection.

And assuming that dancing is protected by the First Amendment, which is the main argument of the licensees in this case, we submit that the licensees may not make sexual acts and conduct and visual displays dancing by merely calling it dancing or the fact that such acts or conducts that are engaged in with music being played or that they may do some dance steps up to the act or dance away from the act does not make these acts, the sexual acts, sexual conduct, dancing.

Sexual conduct and acts are sexual conducts and acts.

Furthermore, we would submit that if the live sexual acts or conduct or displays are not speech, it does not seem rationale to us to say that by merely putting such acts or even conduct on film that they are transformed into speech, the minute they are put on the film and visually displayed by film rather than live.

Justice Potter Stewart: Well, a murder might not be a speech I suppose we could agree that it isn't and yet the depiction of a murder in a movie or a play, simulated, certainly is protected by the First Amendment, isn't it?

Mr. L. Stephen Porter: Yes, but here we are dealing with regulations that do not want the sexually oriented entertainment, whether it'd be on film or whether it'd be live and we're not looking at -- to the context.

I suppose a -- if one just showed a murder and nothing more --

Justice Potter Stewart: Now I will take off fellow or take accomplished works, dramas through the ages, those are certainly protected by the First Amendment, aren't they?

Mr. L. Stephen Porter: Alright and as to that, we'd say that, if it is within the First Amendment, that the state here could show a proper more significant interest to more out weighing interest in preventing the display of such films on premises where alcoholic beverages are being consumed, conceding that it would be First Amendment film, protected by the First Amendment.

We believe the state can properly restrict such films from premises where alcoholic beverages are being sold and consumed.

Justice Thurgood Marshall: And the Twenty-first Amendment does encroach upon the First?

Mr. L. Stephen Porter: Well it would have encroach in the sense that and that is the interest of the state involved here over the control of conditions surrounding the sale of alcoholic beverages.

So the 21st would be in the state's traditional power, absent Twenty-first over the conditions surrounding the sale --

Justice Thurgood Marshall: Did the regulation prohibit the selling of books?

Mr. L. Stephen Porter: I submit, if the legislative -- no regulations do not.

Justice Thurgood Marshall: The whole point is that you have to go as far as you are going, that's my only point.

Aren't you going a little far?

Mr. L. Stephen Porter: Mr. Justice Marshall, the regulations do not prohibit books.

If the legislative hearing before the department show that books were sold on such premises and that where you ask sexually oriented books, combined with persons drinking alcohol that you have these bad results occurring than I assume that it would promulgate as part of the regulations or prohibition against such sexually oriented books being sold --

Justice Thurgood Marshall: That would only be under the Twenty-first Amendment?

Mr. L. Stephen Porter: No, I submit that it would be under the state's traditional broad police powers over alcoholic beverages.

Justice Thurgood Marshall: Well, assume -- do you assume that at the present time there are some books that cannot be prohibited from sale in California?

Mr. L. Stephen Porter: Do I assume that there are books that cannot be prohibited from sale?

Justice Thurgood Marshall: Yes.

Mr. L. Stephen Porter: Yes.

Justice Thurgood Marshall: Well, could they be prohibited in a bar and no place else?

Mr. L. Stephen Porter: If there was a proper basis for it, yes.

Justice Thurgood Marshall: Well, what is that other than to try the Twenty-first Amendment?

Mr. L. Stephen Porter: Well, I wonder under this Court's decision in United States versus O'Brien, I suppose if it was shown than whenever a certain book or certain types of books were present on a bar that resulted in, always in breaches of the peace.

There is a book on Protest to War and that when people were drinking in bars, that the record show that nine times out of ten when you had this book in a bar and people were drinking, you automatically had a--

Justice Thurgood Marshall: You recognize that there is a difference between this tearing up a draft card and selling a book?

Mr. L. Stephen Porter: Yes.

Justice Thurgood Marshall: Thank you.

Justice Potter Stewart: It seems to me Mr. Porter that and I have this feeling reading through the briefs that this case turns around -- the California Department of Alcoholic Beverage Control has not prohibited these things going on in the state of California or anywhere.

It simply prohibited the sell of liquor by the drink and that's its function, that's its jurisdiction, and I should think that you could validly argue whether you could make the argument, that under the very broad autonomous police power given to the states under Twenty-first Amendment and historically that California could prohibit selling liquor by the drink in bookstore if it wanted to or within a 100 feet of a church if it wanted to, without violating either freedom of free press or freedom of religion.

You are dealing with liquor by the drink, you are not prohibiting these things from going on, you are prohibiting liquor from being sold, isn't that true?

Mr. L. Stephen Porter: Oh, I would endorse it.

Justice Potter Stewart: Well, you don't say that anywhere in your brief very clearly?

Chief Justice Warren E. Burger: I thought that was the purport of my question to you whether this is a licensing cases or an obscenity case.

It's a licensing case relating to the sale of liquor as Justice Stewart emphasizes and what else is -- what other businesses transacted in conjunction with that is the matter for the state police power of California at least, so I would understand the state's position.

Mr. L. Stephen Porter: Yes.

Well aside from that position that the state is merely licensing liquor by the drink and just saying where it maybe sold, I would like to point out that nonetheless assuming that it should be found that the conduct, the acts, the displays that are prohibited by this regulations from being a performed or being offered on on-sale alcoholic beverage premises are within the First Amendment.

And there is a question as to the state that the state is actually trying to regulate First Amendment activity and not trying to do something in furtherance of alcoholic beverage control.

We submit that a state may regulate on grounds other than obscenity that the decisions relied on by the lower court, Roth and the obscenity cases, and relied on by the licenses, deal solely where a state is proceeding against acts or conduct on the basis that they are obscene and as we have indicated that is not the state's interest here.

This court set down the criteria in United States versus O'Brien.

We've indicated in our briefs, how we feel that has been made by the state's regulations.

Justice Lewis F. Powell: Mr. Porter, counsel for appellee has argued that these regulations or whatever else may be said for them or against them, are overbroad and vague, would you get a comment on that before you conclude your argument?

Mr. L. Stephen Porter: We submit that they are not overbroad and vague.

They prescribe specific sexual acts, specific sexual conduct and limited --

Justice Potter Stewart: I thought they prescribed the sale of liquor on certain premises, don't they?

Mr. L. Stephen Porter: In their form, the regulation state that a on-sale license shall not be held on premises which offer the --

Justice Potter Stewart: Liquor by the drink shall not be sold in certain places?

Mr. L. Stephen Porter: Certain places that offer these specific acts and conduct.

Chief Justice Warren E. Burger: Well, isn't that under the same power that the state might exercise if it prohibited sale of intoxicating beverages within 500 yards of a school.

Mr. L. Stephen Porter: Yes.

Chief Justice Warren E. Burger: Isn't it the basically the same premise?

Mr. L. Stephen Porter: Yes.

Justice Potter Stewart: I didn't mean to interrupt you in tour answer to Mr. Justice Powell's question, but I --

Mr. L. Stephen Porter: And in that respect, a specific -- they are not overbroad in that the regulations do not prescribe the holding of a license on premises that offer any entertainment or as they do not prescribe that such entertainment may not be offered in any premises in California, it's limited to on-sale alcoholic beverages where the customer's are breaking.

Unless the Court has some questions --

Chief Justice Warren E. Burger: Very well.

Mr. Hertzberg?

Argument of Harrison W. Hertzberg

Mr. Harrison W. Hertzberg: Mr. Chief Justice, may it please the Court.

These rules set for grounds for disciplinary proceedings against a alcoholic beverage control licensee.

These rules say in effect that if you permit entertainment, which entertainment has these acts, specific acts, that's grounds to discipline you suspend or revoke you liquor license.

It's our contention that as a condition of the exercise of that license, you cannot deprive an individual be she or he a dancer as there are plaintiffs in this case or a licensee before going to their First Amendment rights.

Justice Potter Stewart: Do you think a State could validly say that no liquor by the drink should be sold in bookstores?

Mr. Harrison W. Hertzberg: I don't believe that a State could validly say that liquor by the drink should not be sold in bookstores.

Chief Justice Warren E. Burger: How about across the street from the school?

Mr. Harrison W. Hertzberg: I believe they could stay that across the street from the school, as a matter of fact the State of California says within 600 feet of school or a church.

Chief Justice Warren E. Burger: How do you distinguish that from kind of a police power they are exercising here?

Mr. Harrison W. Hertzberg: I say that is merely --

Chief Justice Warren E. Burger: It's an environmental decision in each case, is it not on part of the State?

Mr. Harrison W. Hertzberg: When you say that liquor cannot be sold at a bookstore, you're saying no differently than you can't read a book in a bar.

I think you're doing indirectly that a State cannot do directly by prohibiting fee speech.

In other words, --

Justice Potter Stewart: Could the state say that liquor in our State is only going to be sold where only liquor is sold and nothing else goes on, no other commodities are sold?

Mr. Harrison W. Hertzberg: Well, first of all these rules don't say that.

Justice Potter Stewart: No, but I am asking these questions just to test your argument --

Mr. Harrison W. Hertzberg: Yes, Your Honor, Mr. Justice Stewart said, the rules turned around.

In this case they are bad and over, however, traditionally in this country you had political discussions, you had entertainment in bars where liquor is sold which is part of an inherent and I think of First Amendment --

Justice Potter Stewart: You don't have them in many Counties and many states because you don't have any bars and there is no question about the power of a state in its entirety or in some of these counties to not have any bars whatsoever?

Mr. Harrison W. Hertzberg: Mr. Justice Stewart, if you limit, you prescribe that liquor cannot be sold in a bookstore you are discriminating against those people who want to read books and exercise their First Amendment rights while drinking, those who do not.

When you have a monopoly state and don't permit liquor to be sold anywhere in that state you are treating all people alike, you may have very serious Fourteenth Amendment problem with the type regulation which you specify.

Chief Justice Warren E. Burger: What about, to go back this limitation that Justice Stewart is pressing at, could they validly prohibit the sale of gasoline and liquor in the same establishment, in other words selling liquor at a filling station?

Mr. Harrison W. Hertzberg: If you can show State of California has scientific evidence in some kind of a legislative hearing that would constitutionally permit them to find that there were some logical and reasonable correlation between the sale of gasoline where liquor sold then I would say, yes.

But more so in a First Amendment right situation and that's we have here.

Going back to the legislative hearings in this case, I contend, and we contend that the State of California must show some logical and reasonable correlation between the drinking of liquor while watching a nude girl dance or a movie or even a television which some of the shows on television today would be prohibited by these rules and a kind that occurs outside the premises and I say that for this reason Mr. Chief Justice, that each and every act complained of in pray to horribles listed in the brief of appellant herein is either prescribed by California Statute today, none of plaintiffs might and that I represent, there is over 20 of them here, obviously during this kind of conduct, were judged by, they are judged by the normal rules of obscenity and that's all we ask this Court to do is to judge it no differently then they would judge any other First Amendment right.

Justice Thurgood Marshall: How does prostitution get under obscenity?

Mr. Harrison W. Hertzberg: Well --

Justice Thurgood Marshall: That's one of the acts that you're talking about?

Mr. Harrison W. Hertzberg: I submit Your Honor, Mr. Justice Marshall, that these hearings, if the Court will refer to the entire text of them, you'll find that they invited every law enforcement officer, practically everyone, district attorney, city attorney and Attorney General to testify, and police officer.

Justice Thurgood Marshall: Well, isn't there a regulation in California that a bar which sells liquor and they have prostitution inside the bar and they lose their license?

Mr. Harrison W. Hertzberg: You can lose your license, yes, yes there is.

Justice Thurgood Marshall: Well, has that ever been contested in court?

Have you ever gone after that regulation?

Mr. Harrison W. Hertzberg: No I have never gone after that regulation because appellate hearing --

Justice Thurgood Marshall: Well then they do have some power over the bar, don't they?

Mr. Harrison W. Hertzberg: Oh!

They have lot of power over the bar, but I don't think they have the power to dispel your --

Justice Thurgood Marshall: Well, then the denial of Equal Protection that the only place to singled out is the bar, they don't see lot of bookstores that has the prostitution?

Mr. Harrison W. Hertzberg: There is no question, but that there is a greater police power over the bar than there is over bookstore.

Justice Thurgood Marshall: Over any other place, isn't that true?

Mr. Harrison W. Hertzberg: I couldn't stand here and deny it Mr. Justice Marshall.

I don't think that the power is that strong and in this instance here, after three days of hearings, the record will reveal that since this entertainment commenced in Los Angeles, the entire State of California, they established outside of the premises, that they were four indecent exposures, one attempted rape, one actual rape by alleged patrons and two general statements that crime was on the increase and that's after three days of testimony, inviting every law enforcement officer of the state to testify.

Each and every one of the pray to horribles here is grounds for disciplining a license of the licensee.

There is no need as these rules in this case before this Court at this time to take away the First Amendment rights which we feel would be taken away as a condition of the exertion of a privilege because here we're not talking about the type of conduct as the appellant alleges occurred in O'Brien, this is directly communicated activity.

I don't stand here and ask this Court to think or believe that every bar in the city of California carries out the type of activity which the appellant picked out and chose to put in his brief in this case.

These are by far the exception.

If in California, or any state I would believe, any activity occurs of this nature, any contact between a patron and a entertainer, it would be prescribed in addition thereto if it's the liquor, if the liquor is the added element in this case, which appellant seeks to use to invade the constitutional right then why not remove the liquor if we can to the best extent in the from bloodstream of the patron and we do that in California by saying, we have cited Section 647 (f), that you are not permitted to remain on the premises if you are under the influence or if you are not the influence you are no different than anybody else.

So you should not be there in the first place and if they are going to be inside the bar to police it to determine whether there has been any violation of your -- of the alleged rules they might as will just take the people that are under the influence and get them out of the bar.

Justice Lewis F. Powell: Mr. Hertzberg, do you think the State validly could forbid the sale of liquor in the lobbies of all theaters, or the sale up and down aisles of all the theaters?

Mr. Harrison W. Hertzberg: My brother Schultz will probably argue that point in that we feel that the State could not validly exclude the sale of alcohol in the lobbies on the same theory that we argue here because there is no rationale or scientific showing that the drinking of that alcohol will result in any criminal activity.

Justice Thurgood Marshall: Do you have any case of it?

Mr. Harrison W. Hertzberg: I have no case on it except this Court decided, in its variable obscenity cases, the Sam Ginsberg case in which --

Justice Thurgood Marshall: What has obscenity got to do with selling liquor in the lobby of a theater?

Mr. Harrison W. Hertzberg: Obscenity really has nothing to do with selling liquor in the lobby of the theater.

We just feel that if a man has a liquor license and he operates a theater and the sale of the liquor is a necessary element to his operation, then what you’re doing is you’re placing upon the patrons of that theater and the owner an unconstitutional burden and carving away the First Amendment rights of what you can show if you --

Justice Thurgood Marshall: Well, how do you get to First Amendment right, a man taking a drink in the lobby of a theater, which show you an Opello (ph)?

Mr. Harrison W. Hertzberg: Mr. Justice Marshall, it is true the way you pose your question, it doesn’t meet identically the rules in this case.

This case is a different case than your question.

However, I believe it would indirectly create the identical himself.

That is, if you say to a man he can't sell liquor in the lobby of the theater and he sells liquor in the lobby of the theater, he will either lose his license or he will be criminally prosecuted.

Justice Thurgood Marshall: Is this Equal Protection you're arguing or First Amendment?

Mr. Harrison W. Hertzberg: First Amendment sir.

Now --

Justice Thurgood Marshall: Well, suppose the state says you can't sell liquor in the entrance to an iron foundry, I’m trying to get somewhere away from First Amendment, we agrees iron foundries are away from the First Amendment?

Mr. Harrison W. Hertzberg: Yes.

Justice Thurgood Marshall: Well could they do that?

Mr. Harrison W. Hertzberg: I agree to it.

Justice Thurgood Marshall: The state could do it?

Mr. Harrison W. Hertzberg: No, First Amendment right the state could do that.

Justice Thurgood Marshall: Well is there any other reason they couldn’t do it?

Mr. Harrison W. Hertzberg: Well, other than the fact that it may discriminate against iron foundry workers under the Fourteenth Amendment, probably we will be able to look at that.

Justice Thurgood Marshall: Well doesn’t that 2 O’clock closing rule discriminate against workers at night?

Mr. Harrison W. Hertzberg: I think that’s a reasonable discrimination.

Justice Thurgood Marshall: Well, I see.

Mr. Harrison W. Hertzberg: If the Court please, historically -- well, what we have to argue at this time, the regulations as they come before this Court.

Briefly in answer to Mr. Justice Stewart’s initial Younger versus Harris argument, we filed this action originally on behalf of plaintiffs in the Superior Court of the county of Los Angeles for declaratory relief and requested an injunction in Superior Court which is the trial court and we were denied hearing.

We petitioned the District Court of Appeals for writ of mandate and we were denied hearing.

We petitioned Supreme Court in state of California and we were denied hearing, both on behalf of entertainer dancers and bar owners.

Justice William H. Rehnquist: Mr. Hertzberg, is -- then the California courts assign no reason for their refusal to consider your petition none of it, is that right?

Mr. Harrison W. Hertzberg: No Mr. Justice Rehnquist, merely a postcard saying which I -- As the appellate herein says he requested a hearing along within us in Supreme Court, and it was denied on both sides.

The dissent in the Federal District Court below did feel that there was a Younger versus Harris problem, but we went through every court in the state and didn't get heard.

Justice Harry A. Blackmun: Mr. Hertzberg, do you have any comment on that refusal?

Do you draw any inferences from it or is it a routine procedure in California?

Mr. Harrison W. Hertzberg: Well, I very honestly state Mr. Justice Blackmun, I know one thing that the California Supreme Court like this Court doesn’t like to give advisory opinions and whether that was their theory or not would really be conjuncture on my part.

However, in California, you can only contest a disciplinary proceeding on a liquor license by going through certain administrative procedures.

We filed a complaint in this case prior to the effective date of the rules to enjoin, I believe it may have been concurrently therewith to enjoin their enforced on the theory that it would be irreparable damage of which the appellant agreed, they were going to enforce them and that the loss of these licenses would be irreparable.

We did not wait until the licenses were revoked or until disciplinary proceedings had been instituted.

Justice William H. Rehnquist: Does California have a procedure whereby one can get a judicial review of administrative rule making which I take it was what you sought here rather than an administrative adjudication?

Mr. Harrison W. Hertzberg: I would have answered that question in this regard, I will defer the answer to Mr. Scholtz.

I believe a declaratory relief probably could.

We would submit further that the way rules are drafted, they are overbreadth the Smith versus California problem which Mr. Scholtz will take up with the Court, are such that or in a manner that they do deny the licensees herein the proper exercise, the licensees and the dancer plaintiffs, the proper exercise of their First Amendment rights as a condition to the owning of a liquor license, no different than NAACP versus Button and those line of cases requiring the foregoing of an old etcetera to maintain the license.

That's the basis of our argument herein.

The District Court below said that if it is not obscene then something is wrong with it and they can't take your license away because obscenity has been the standard since 1957, decided by this Court in Roth, but to accept these rules taking things out of context and merely saying if an act simulates, an act that simulates, whatever that may be, that's grounds for disciplinary proceeding even if it is in a picture on the wall because it involves movies, still pictures and entertainment of any kind of nature whatsoever.

The injunction granted in the Federal District Court in this case, specifically accepted any contact between any entertainer and any patron, person in the bar which are 90% of the pray to horribles listed in the briefs, in the briefs of the appellant herein.

We submit that from time immemorial, dancing, entertainment of that kind as this Court said in Stanley versus Georgia the line is too illusive to draw between conveying ideas and entertainment that whether it is vulgar, whether it is refined, whether it is ugly or whether it is elegant receive the same protection and that test the obscenity test as has been laid down so strong and hard.

To sustain the rules in this case would take us back to Hicklin, prior to Roth.

The activity, dancing is direct communication.

This is not as I previously said an O'Brien case.

In O'Brien, this Court held that when speech and non-speech elements are combined in the same course of conduct, a sufficiently governmental interest in regulating the non-speech element can just defy incidental limitations on First Amendment freedoms.

But, the Court further went on in O'Brien and stated, referring to Stromberg versus California, the red flag waving case, since the statue there, in San Bernardino, California was aimed at suppressing communication.

It could not be sustained as a regulation of non-communicative conduct, citing Brandenburg versus Ohio which came later, Brandenburg versus Ohio which required the incitement to action.

We submit that the conduct here, or the content of the conduct here cannot be changed from speech to symbolic speech or non-speech merely by changing the name.

Justice William H. Rehnquist: Mr. Hertzberg, is it a summary of your position or is it not fair to say that you are contending that what the state because the state can't prohibit something in a theater, it can prohibit it in a bar either?

Mr. Harrison W. Hertzberg: That is correct.

Chief Justice Warren E. Burger: Thank you Mr. Hertzberg.

Mr. Scholtz.

Argument of Kenneth Scholtz

Mr. Kenneth Scholtz: Mr. Chief Justice and may please the Court.

I think that it is clear this case involves a conflict between the state's police power to control alcohol and the First Amendment.

I think it is clear that these rules would be over-broad, over-broad and vague under the First Amendment, if there were no question of alcohol involved and that they prohibit -- well I could list, I can tick off a list of movies that couldn't be shown in a bar under these rules.

The Catch 22, Summer of 42, I could tick off a list of master works of arts including probably half of the output of Picasso that couldn't be shown.

So, let me ask a rhetorical question.

Could a state require bars to be racially segregated, after holding hearing wherein police officers testify that fights between persons of opposites races are more likely to occur when they are drinking, and therefore, the state says that bars are required to be racially segregated.

I say it could not do so.

That would an impermissible conflict between the Fourteenth Amendment and the state's police power over alcohol.

Similarly, I think in this case the state cannot make an unconstitutional discrimination against exercise of First Amendment rights simply because alcohol is involved.

To respond to Mr. Justice Burger's question at the beginning, let me distinguish this between a rule that says a bar cannot be located say within 600 feet of a Church as California does. California says, you cannot put a bar within 600 feet of a Church.

The California does not say and I submit it, it could not say that you cannot put a Church within 600 feet of a bar and California does not say if you have a bar in a place and a Church comes in within 600 feet that the bar has to go.

Because I would also say this that the rule respecting for example, distance to Churches is intended to protect the persons who go to the Churches.

These rules are intended and expressly intended to control what the people do inside the bar without regard to where it is located without regard to what effect it may have on anyone else outside the bar.

So, there is a clear distinction here between this type of a rule which directly applies to the conduct inside of a bar which directly restricts what can go on inside a bar.

Justice Potter Stewart: Again, perhaps according to how you put it, but I thought this had to do with places where liquor could be sold, not to what conduct goes on inside of a building, but whether or not a liquor could be sold.

In other words it is similar to a state saying no liquor shall be sold while they drink in a Church.

Mr. Kenneth Scholtz: I don't think it is.

Justice Potter Stewart: And the question is would that violate the person's freedom of religion?

Mr. Kenneth Scholtz: I don't think it is.

Suppose the Church had that type of rule.

Justice Potter Stewart: No I am talking about the state had that kind of rule.

Mr. Kenneth Scholtz: Alright suppose the state has a rule.

No sale of liquor at bookstore or at a Church.

That does not mean that a bar automatically becomes a bookstore or Church because it happens to sell a book or because it happens to conduct religious services.

It is a question of where the classification --

Justice Potter Stewart: Depends upon how you put it, but --

Mr. Kenneth Scholtz: No I think it is a question of where the class.

Justice Potter Stewart: But this particular state agency has to do deal with the regulating the sale of liquor?

Mr. Kenneth Scholtz: That's correct and I think that --

Justice Potter Stewart: And that's all it is purported to regulate, isn't it?

Mr. Kenneth Scholtz: No I don't think so.

I think this rule purports to regulate the content of the --

Justice Potter Stewart: The places where liquor can be sold?

Mr. Kenneth Scholtz: What this rule says and I think this is important, I don't think its just a case of how you put it.

This rules discriminates between types of entertainment.

It says, entertainment can take place inside of bar except that the entertainment can't have this and it can't have that and can't have something else.

I think this is an unconstitutional discrimination between types of entertainment and that I think the Constitution would require that type of a discrimination to be made on the basis of obscenity.

Unknown Speaker: Is it Fourteenth or the First?

Mr. Kenneth Scholtz: First.

Justice Potter Stewart: Well, it has to be the Fourteenth (Inaudible) in the State of California?

Mr. Kenneth Scholtz: First and Fourteenth, it's not a direct application to the First through the Fourteenth.

Chief Justice Warren E. Burger: You reject the position of the State that this is a licensing case rather than First Amendment case?

Mr. Kenneth Scholtz: Well, it's obviously both.

It is both a licensing case and the First Amendment case.

It involves as I said originally, the conflict between the First Amendment and the licensing power and I don't think that, as I have said, I don't think this is a mere question of terminology and how you put it.

Justice Thurgood Marshall: Do they have a rule about lighting in bars out in California?

Mr. Kenneth Scholtz: I think there is just a general rule that says that the bars have to be -- have sufficient light for investigators to see what's going on when they walk in.

Justice Thurgood Marshall: Is there any interference with his First Amendment right?

Mr. Kenneth Scholtz: That would be different because that is not, that would be an example of an incidental restriction on a First Amendment right of the type, the O'Brien type.

Justice Thurgood Marshall: Isn't entertainment incidental?

Mr. Kenneth Scholtz: No, I don't think entertainment is incidental.

I think is entertainment is a direct First Amendment activity.

Justice Thurgood Marshall: Well isn't it incidental to the selling of Whiskey?

Mr. Kenneth Scholtz: Not necessarily, in many of these places that may be.

Justice Thurgood Marshall: Do you of anybody who goes to bar that hasn't entertainment and doesn't buy a drink and if you find him to bought the -- is going to put him out?

Mr. Kenneth Scholtz: I would agree with that Justice Marshall.

Justice Thurgood Marshall: Right, am I correct?

Mr. Kenneth Scholtz: That is correct Justice Marshall.

Justice Thurgood Marshall: So its incidental to the selling of Whiskey?

Mr. Kenneth Scholtz: Well I would say this they are incidental --

Justice Thurgood Marshall: And it is incidental to the selling of Whiskey, its a part of the business of the Alcoholic Beverage Control Board?

Mr. Kenneth Scholtz: I would agree with that I don't agree with that, I don't disagree with that proposition, but I do disagree with the proposition that the Department of Alcohol and Beverage Control can do whatever it pleases without regard to the First Amendment Rights of the participants.

I don't think that the Department of Alcohol and Beverage Control could condition the issuance of the license upon the applicant taking the oath that this Court held was unconstitutional in Speiser versus Randall.

I don't think the Department of Alcoholic Beverage Control could condition the issuance of a license upon the licensee filling out the questionnaire that this Court held unconstitutional, I am forgetting the name of case, the Arkansas case.

I don't think the Arkansas school teacher case, I don't think that --

Justice Potter Stewart: Sheton against Tucker.

Mr. Kenneth Scholtz: Right, Sheton against Tucker.

I don't think there is any question that the state couldn't do that and I don't think the state can condition the issuance of a license upon the refusal of the licensee to exercise his First Amendment rights in a manner which discriminates the way this rule discriminates, the way rule discriminates between types of entertainment.

I don't think a State can say, you can show Bambi but you can't show Summer of 42 inside the bar, that's what I think is the unlawful discrimination.

Justice Potter Stewart: Mr Schultz early in the argument of your brother on the other side I asked about Younger problem.

I am interested now in another preliminary question of this case, I have read Judge Ferguson's opinion when I got here and I just glanced it over again.

Now I have a hard time in finding in his opinion any conclusion that the remedy at law was inadequate or that there was a irreparable harm of course would be satisfactory conditions to the issuance of this injunction?

Mr. Kenneth Scholtz: The joint pre trial statement, I think contained those elements that there was a reparable harm and there would be reparable harm in the enforcement of these rules and that the remedy at law was inadequate.

Justice Potter Stewart: There is no finding however unless you can find it in this discussion of Blount against Rizzi and Freedman against Maryland I suppose the application -- or otherwise this was impermissible, wasn't it, an injunction?

Mr. Kenneth Scholtz: No I don't think it was impermissible.

Justice Potter Stewart: Why?

Mr. Kenneth Scholtz: If the Court refers to the record there was a direct pretrial statement filed joined in by all parties and the court in which the statements that there was irremediable harm here and that this would exist if there was no injunction.

Now if Judge Ferguson neglected to put that in his opinion I don't think that removes jurisdiction, that is in the record.

It's also the case of the State Courts as we have said did refuse to take the case.

In answer to Mr. Justice Rehnquist's question earlier there is a type of declaratory relief remedy available and that is what was done in this case because the State Of California in a Liquor case requires you to go to the Appellate courts rather than the trial courts level and the Appellate courts apparently have the discretion to refuse to take the case which is --

Justice William H. Rehnquist: So it's a discretionary denial of a relief that is -- can't be available under California law?

Mr. Kenneth Scholtz: That's right.

That's a discretionary denial of a relief it can't be available and there was no place left to go.

So that the attempts to exhaust, take the State remedy had been exhausted.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Schultz.

Do you have anything further Mr. Porter?

Rebuttal of L. Stephen Porter

Mr. L. Stephen Porter: No.

Chief Justice Warren E. Burger: Very well, the case is submitted.

Thank you gentlemen.