DORAN v. SALEM INN, INC.

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Case Basics

Docket No.

74-337

Appellant

Doran

Appellee

Salem Inn, Inc.

Decided By

Burger Court (1972-1975)

Opinion

422 U.S. 922 (1975)

Argued

April 21-22, 1975

Decided

Monday, June 30, 1975

Advocates

Joseph H. Darago

(for the appellant)

Herbert Kassner

(for the appellee)

Term:

1970-1979
- 1974

Facts of the Case

None

Question

None

Argument

Doran v. Salem Inn, Inc. - Oral Argument

Full Transcript Text Download MP3

Doran v. Salem Inn, Inc. - Oral Argument, Part 1

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Doran v. Salem Inn, Inc. - Oral Argument, Part 2

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Conclusion

Decision: 9 votes for Doran, 0 vote(s) against
Legal provision: Abstention Doctrine

None

Print this transcript Transcript:

Argument of Herbert Kassner

Chief Justice Warren E. Burger: We'll resume arguments in Doran against Salem Inn.

Mr. Kassner.

Mr. Herbert Kassner: Thank you Mr. Chief Justice and may it please the Court.

I think that initially I should review the facts which were scantly reviewed yesterday because there seems to be some misapprehension as to what actually took place.

Appellees herein where owners and operators of premises in which food and liquor was served; one for a period of eight years, one for a period of five years and one for a period of about two years.

At the time the town of North Hempstead passed its ordinance, during that period, they had offered their patrons topless dancing entertainment.

The ordinance forbade the appearance in any public place and underlying any public place of a person with the breast uncovered or with the lower part of the torso uncovered.

This was the broadest imaginable prohibition, it covered every place in the town of North Hempstead and it specifically covered any scene, sketch, act, or entertainment.

In that regard, it was clearly affecting a theatrical performance presumptively protected by the First Amendment.

Now, to -- [Voice Overlap] -- it wasn't covering anything but live people.

Unknown Speaker: Okay.

Mr. Herbert Kassner: The appellees did not offer entertainment by a way of topless waitresses.

They did not offer topless bartenders.

What they had was, a real stage, segregated from the patrons on which professional dancers were employed throughout the day to offer dancing entertainment.

These professional dancers were hired through theatrical agencies.

Some of them were employed in ballet work in the City of New York and did this to earn extra money.

This wasn't a situation of -- which was alluded to in LaRue I believe to (Inaudible) in a place it served liquor.

Now, the appellants herein maintain in page 12 their brief the method exercised by the legislative body to ensure the health, safety and well-being of the community is not a proper subject for review by this Court.

I don't know whether they're serious or not serious in that contention but it would seem that the statute was enacted.

The ordinance was enacted under this theory.

It seems that they denied the existence of a supremacy clause.

They claim that they could undercut the evils, various nuisance evils at the source by passing this type of an overbroad speech inhibiting ordinance.

Justice William H. Rehnquist: Mr.Kassner, am I right in thinking that your claim is basically one of overbreadth that is that New York could have prohibited these particular performances in institutions serving liquor had it drawn an ordinance to that effect?

Mr. Herbert Kassner: Had the state liquor authority in the State of New York drawn an ordinance as sanctioned under LaRue involving the licensee, the sale of liquor in premises where this type of activity went on, yes they could've done so Your Honor.

Justice William H. Rehnquist: Do you say the state liquor authority but you went into federal court to challenge this provision.

We don't know whether New York, we know that New York has this power under the Twenty-first Amendment, we don't know whether it resides in the state liquor authority or whether it's delegated at the town of Hempstead.

I think you pretty well have waived that by failing to litigate that in the state courts.

Mr. Herbert Kassner: Well, Your Honor I haven't litigated that here, I don't think I need it.

I'll stick with my overbreadth and I'm just mentioning as an aside that the town of North Hempstead wouldn't have had the power to legislate the type of LaRue ordinance which is permissible but that is not necessary for the purpose of --

Justice Mr. Justice White : Why not?

Mr. Herbert Kassner: Because --

Justice Mr. Justice White : It isn't regulating liquor is just saying there won't be any nude dancing in bars.

Mr. Herbert Kassner: That's not what they've said in this ordinance You Honor.

Justice Mr. Justice White : I know but let's assume they did.

They had a local ordinance so there shall be no nude dancing in any place for liquors so is that what you say -- that's not within the power of municipality?

Mr. Herbert Kassner: Yes, Your Honor.

Not within the power of the town of North Hempstead.

Justice Mr. Justice White : That's what you're saying?

Mr. Herbert Kassner: Yes, Your Honor.

Chief Justice Warren E. Burger: Is that an issue before us?

Mr. Herbert Kassner: No Your Honor.

But that's -- if you asked that's what I'm saying, yes, that's what I'm saying but that's not issue before here Your Honor.

They didn't say no topless dancing in the town of North Hempstead.

They didn't say no topless dancing where liquor was sold in the town of North Hempstead.

They said, No exposure of the breast or the lower part of the torso in the town of North Hempstead in any public place, whether it'd be part of a sketch, scene, act, or entertainment or otherwise.

So, I'm willing to deal with what they did say rather than what they didn't say and I'm not depending upon the fact that they couldn't have passed the LaRue type statute.

There is a contention by Mr. Darago made yesterday that the overbreadth adjudication is limited to the spoken word and all I need to say is that overbreadth adjudication is limited to expression protected by the First Amendment and or presumptively protected by the First Amendment or expression which could be protected by the First Amendment and that includes a great deal more than the spoken work.

He claims that the ordinance was aimed at the elimination of litter, noise, traffic congestion and unspecified conduct of patrons adjacent to appellees premises by a cutting-off at the source.

It should be noted that there are ample laws in the State of New York to cover those evils of litter, noise, traffic congestion, and whatever unspecified conduct of patrons they maybe referring to that if there weren't adequate laws in the State of New York or the town of North Hempstead, these evils could've been cope with by a more narrowly drawn specifically directed piece of legislation rather than what is referred to as a cutting off at the source.

It would be just as appropriate for a town to forbid sporting events because of the traffic congestion incident to a stadium or to forbid political rallies because of the congestion incident to the area where it take place as it is to pass this type of ordinance to cope with traffic congestion or noise or litter.

There is no doubt of what the intention of the town of North Hempstead was.

What I am arguing here today under the doctrine of overbreadth is that the law which they passed was far too broad to be permitted under the First Amendment.

Justice William J. Brennan: Are you going to get the request Mr. Kassner whether in any event this Court should've proceeded with the suit libel tendency before its judgment of criminal prosecution against one of these three bars?

Mr. Herbert Kassner: If you want me to move to that Mr. Justice Brennan, I'll move to that --

Justice William J. Brennan: That question is here.

Mr. Herbert Kassner: Yes, Your Honor.

I was going to --

Justice William J. Brennan: You're maybe right at everything but wouldn't be immaterial I think if both the District Court shouldn't have preceded with the suit.

Mr. Herbert Kassner: On the issue of abstention, we have here two plaintiffs.

Justice William J. Brennan: Well, is this abstention, how do you --

Mr. Herbert Kassner: Well I'm using abstention in Younger versus Harris sense is that --

Justice William J. Brennan: Is that abstention.

Mr. Herbert Kassner: Well Your Honor--

Justice William J. Brennan: It's alright.

I don't blame you, I don't know that any of us knows.

Mr. Herbert Kassner: I've read you a decision in Steffel and I've read your decision in Dombrowski -- all I can say is that I am willing to assume that the Younger doctrine is classified as abstention despite the fact that the Pullman doctrine was classified as abstention and there are two different facets of an abstention issue if you don't want me to use the word abstention, I'll use comedy --

Justice Potter Stewart: Let's use the Younger doctrine.

Mr. Herbert Kassner: The Younger doctrine, yes.

As far as I can tell from my reading of Younger, the holding in Younger was that we're at the time of the filing of a federal suit, the federal plaintiff was then at that time a defendant and a pending criminal proceeding in a single pending criminal proceeding.

The federal court would not take the case and send it back for adjudication in the state criminal proceeding.

Justice Potter Stewart: Now, it would dismiss.

Mr. Herbert Kassner: Yes Your Honor,It would dismiss.

Justice Potter Stewart: Just send it back.

Mr. Herbert Kassner: It would dismiss.

Now we have two plaintiffs here who where never involved in a pending state criminal prosecution either before or after the commenced to the federal action.

Now, as to them it appears clear that Younger does not apply.

Now, I will get to this argument of privity later but under your decisions in Roe versus -- I think Wade, Roe versus Wade.

You have the same idetical situation of one man who was involved in a state criminal prosecution and one man who wasn't it was dismissed as to the one who was.

The Court took jurisdiction and the term to the question to the one who doesn't.

So, I don't this is a noble issue in this case.

I think that the only issue trully in this case substantive or procedurals is how do you treat M & L?

I dont think there's any question as to the other two plaintiffs on the substantive or procedural issues.

So if you want me to go to how do you treat M & L and why do you treat M & L that way, I will and attack the heart of what I believe is the only problem left in this case after your decision is obvious of production.

Not M & L after the commencement of the federal case violated the statute and were subjected to immediate prosecution.

I will get back to the fact that they were subjective to eight criminal prosecutions at the period of four or five days later and bring that back under the Younger doctrine but right now I'll assume that they had been subjected to a single criminal prosecution in the State Court after the commencement and the file of the federal action by the filing of a federal complaint.

Justice William J. Brennan: Do I understand that the criminal prosecution followed by a day in the following in the filing of the federal complaint?

Mr. Herbert Kassner: Yes, the first criminal prosecution followed a day by the filing of a federal complaint because they started violating the ordinance the day after the federal complaint was filed and the motion for the temporary restraining order was denied.

That particular plaintiff, M & L, did not have the staying power of the other two.

It was a question of economics, they were being destroyed and they couldn't accept this destruction of their business in the interim period that would take to determine either the federal or the state action.

They therefore determined to go ahead and do it on the theory that what they were doing would be vindicated in the end.

The question is who should vindicate what they were doing the State Court or the Federal Court.

Now, Judge Oakes in his decision below wrote approximately a page and a half on this on the considerations of treating M & L differently or the same as the other two plaintiffs and frankly I can't improve on either his words or his reasoning and it would be foolish for me to try.

He specified certain consideration which dictated that M & L should be treated the same as the other two plaintiffs.

Now, with the other two plaintiffs, you had no problem, he just said that it is not Younger case and he pass on from that.

Justice Potter Stewart: Neither the other two plaintiffs ever was prosecuted in the state courts during the -- during any dependency of the federal --

Mr. Herbert Kassner: Never Your Honor.

Justice Potter Stewart: Litigation.

Mr. Herbert Kassner: Yes, never.

Justice Potter Stewart: And that's because I gather they complied with your --

Mr. Herbert Kassner: Yes Your Honor.

That is correct.

They had the staying power to be able to do so.

Justice Thurgood Marshall: With M & L did -- have they still, what are they doing now?

Mr. Herbert Kassner: M & L is still doing topless dancing.

Justice Thurgood Marshall: And where is the state prosecution as of right now?

Mr. Herbert Kassner: Waiting for this Court's determination.

Justice Thurgood Marshall: And so you -- you represent them in the state composite?

Mr. Herbert Kassner: I do Your Honor.

Justice Thurgood Marshall: So, you have the case going in the State Court and the Federal Court altogether.

Mr. Herbert Kassner: Well, the state court has not proceeded at all.

It's remaining right where it was the date that they were arrested.

Justice Thurgood Marshall: That's what you were driving forward to get state court among it.

Mr. Herbert Kassner: Well, I wasn't driving to get the state, excuse me.

Justice Thurgood Marshall: Well, why did they violate the law?

Mr. Herbert Kassner: They violated the law --

Justice Thurgood Marshall: The state got the move.

Mr. Herbert Kassner: They violated the law which they believed was unconstitutional because they believe they would be out of business before either court adjudicated the issue Your Honor.

Justice Thurgood Marshall: So, well you do want it and one of the other courts?

Mr. Herbert Kassner: Well, and if the issue was adjudicated in the Federal Court --

Justice Thurgood Marshall: In one of the other or not?

Mr. Herbert Kassner: Yes Your Honor.

Justice Thurgood Marshall: You wanted one of the other?

Mr. Herbert Kassner: Yes Your Honor.

Justice Thurgood Marshall: Or both?

Mr. Herbert Kassner: No.

One of the other preferably the Federal Court because that's quicker.

Justice Thurgood Marshall: Aren't you running right into Younger?

Mr. Herbert Kassner: I don't believe I'm running into Younger.

Justice Thurgood Marshall: Is it about now?

Mr. Herbert Kassner: If M & L were the only --

Justice Thurgood Marshall: If you have two court proceeding going at the same time --

Mr. Herbert Kassner: Well --

Justice Thurgood Marshall: On the same point.

Mr. Herbert Kassner: The question becomes who initiated the second court proceeding?

At the time of the filing of federal complaint, the local authorities will put on notice that there is a substantial federal question involved in the ordinance.

Justice Mr. Justice White : But the temporary restraining order was denied.

Mr. Herbert Kassner: Yes Your Honor.

Justice Mr. Justice White : In the

Federal Court?

Mr. Herbert Kassner: Yes Your Honor.

The temporary restraining order was denied.

Justice Mr. Justice White : The difference you have now have an injunction against the enforcement of that criminal proceeding?

Mr. Herbert Kassner: Yes Your Honor.

Justice Mr. Justice White : Did you get that from the Court of Appeals?

Mr. Herbert Kassner: I got that first from the District Court, it was upheld by the Court of Appeals.

Chief Justice Warren E. Burger: Got it from the second district judge that you went to, was that not?

So you went to Judge Dooling first?

Mr. Herbert Kassner: Judge Dooling was an emergency judge.

The case was assigned to Judge Bartels.

Chief Justice Warren E. Burger: And it went to Bartels and Bartels entered the restraining order, did he not?

Mr. Herbert Kassner: It's after a hearing and after about 20 or 30 days after reading briefs and after a hearing, he entered a preliminary injunction.

Justice William J. Brennan: it's an injunction which has stop criminal proceeding, isn't it?

Mr. Herbert Kassner: The criminal proceeding for all intensive purposes was stopped as soon as it was initiated.

Justice William J. Brennan: You mean the state didn't proceed with it?

Mr. Herbert Kassner: The state did no proceed with it, there was no intention --

Justice William J. Brennan: But now they can't without violating any --

Mr. Herbert Kassner: No.

They can't without violating the federal injunction.

Justice Mr. Justice White : What was the terms of the injunction?

Justice Mr. Justice White : This was a preliminary injunction.

Mr. Herbert Kassner: Yes Your Honor.

The terms of the injunction whether the state was in the -- defendants were enjoined from enforcing the ordinance.

Justice Mr. Justice White : Against anybody?

Mr. Herbert Kassner: Against these three plaintiff.

Justice Mr. Justice White : Against anybody or not?

Mr. Herbert Kassner: As far as I know, against these three plaintiffs.

Chief Justice Warren E. Burger: Well didn't they hold it than --

Justice Mr. Justice White : As far as you know, having you got the injunction, where is the injunction.

Is it in the appendix?

Mr. Herbert Kassner: Yes it's in the jurisdictional state -- Page 23(a) of the jurisdictional statement.

Just the plaintiffs --

Justice Mr. Justice White : But if the ordinance is primary declared was the District Court and affirmed by the Court of Appeals was declared unconstitutional on its face, was it not?

Mr. Herbert Kassner: The Court of Appeals said that there was a likelihood of success.

They did not declare it unconstitutional as they couldn't because it was merely a preliminary injunction.

Justice William J. Brennan: Well, what's at the top of page 23(a)?

Mr. Herbert Kassner: Well, 23(a) is the District Court, I'm talking about the Circuit Court now and in Appendix 4(a), Judge Oakes' decision says initially, in answer to the question of the propriety of the injunctive relief granted here, we agreed with the District Court as to the probability of success on the merits.

Justice William J. Brennan: Now, was that about 16 to 17 lines history for the citation to burn, what about that sentence?

Mr. Herbert Kassner: As such the ordinance would have to fall that describes the ordinance as if as such that ordinance would have to fall.

Your Honor, I think he meant to make this final determination in their preliminary injunction motion.

Justice William H. Rehnquist: Well, certainly the District Court at the top of page 23(a) says in conclusion, we find that Local Law No. 1-1973, the town of Hempstead is on its phase violative of plaintiff's First Amendment Rights, that's no suggestion that they may, will very well succeed, that's a flat statement.

Mr. Herbert Kassner: That is correct.

But I don't think you can attribute that to Judge Oakes' decision.

That is clear but Judge Oakes' decision is not that clear, he seems to say probability of success and use those words in the proper context for the proper purpose.

Justice William J. Brennan: Furthermore, are you suggesting that the affirmants do not include what Mr. Justice Rehnquist just read to you, is that it?

Mr. Herbert Kassner: Yes Your Honor.

Justice William H. Rehnquist: But his--but what Judge Oakes says is we agree with the District Court as to the probability of success on the merits.

Mr. Herbert Kassner: It construed the District --

Unknown Speaker: (Inaudible)

Mr. Herbert Kassner: What it construed, the District Court's opinion as being one of probability of success, that's what it amounts to which is zero.

Justice Mr. Justice White : I think -- you can -- the District Court of Appeals maybe narrow in planning and (Inaudible) --

Mr. Herbert Kassner: No Your Honor.

I don't think anybody is damage.

Justice Mr. Justice White : Then what is your right on the probability of -- on eight probabilities there.

Mr. Herbert Kassner: Yes Your Honor, I don't --

Justice Mr. Justice White : I'll follow the --

Mr. Herbert Kassner: I don't think anybody is damage by that.

Justice Mr. Justice White : Well the state is pretty (Inaudible) there, if he'd understood that if it did not enforced this ordinance against anybody because of the declaration of unconstitutionality with that as precisely what Mayo against Herington in this court was designed to do that.

Mr. Herbert Kassner: But I don't -- those aren't the words he used in his declaration on page 23(a).

Justice Mr. Justice White : But you declared unconstitutional on its face.

Well didn't enter an injunction against every decision.

Mr. Herbert Kassner: That is correct.

Justice Mr. Justice White : But more important what you declared unconstitutional on its face and most of the prosecutors until it's finally settled which I will work on of course you are against anybody.

They aren't forcing it against anybody in this -- I don't know --

Mr. Herbert Kassner: Well, I think at that time, these were the only three that were doing the activity in the town.

Justice Mr. Justice White : Well they --

Mr. Herbert Kassner: The activity of topless dancing.

So, they had all the parties before them in my impression.

These role -- the people could've been covered by these all three came into Court together, there was no class action because you had everybody to start out with.

Justice William H. Rehnquist: What more would -- what more remained to be done before Judge Bartels after his order of September 6?

Mr. Herbert Kassner: I think something was done -- well, no, an appeal was taken.

Justice William H. Rehnquist: But I mean, he says therefore pending the final determination of this action but what more remained to be done after he had found the ordinance unconstitutional on its phase.

Mr. Herbert Kassner: I guess they would have to file an answer and I would have to make a motion for summary judgment.

Justice William H. Rehnquist: But that was all pro forma after this determination, wasn't it?

Mr. Herbert Kassner: Well, if you take his words to mean that this was not to be found a probability of success sufficient to warrant an injunction, if you assume that that's not what he meant when he said, what he said, then he would undoubtedly follow his prior determination on the motion for summary judgment but certainly did end the case, you had to do something.

There would have to be motion for summary judgment after he joined the revision, there would have to be a permanent injunction entered and there could've been new facts brought out.

Justice William H. Rehnquist: What if nobody did anything after the order of September 6?

Then it simply remains in status quo idea.

Mr. Herbert Kassner: Well, somebody had to file an answer to -- somebody had to make a motion for summary judgment in order to bring it to an end if there wouldn't have been an appeal for the Circuit Court on the preliminary injunction.

Justice William H. Rehnquist: Well, but if nothing is done, Judge Bartels' temporary injunction remains in effect these town as enjoined and it can go on that way I take for 20 years.

Mr. Herbert Kassner: Yes, If nothing is done, that would be effect of any preliminary injunction.

It wouldn't be unusual.

Justice William J. Brennan: I gather your suggestion Mr. Kassner, Judge Oakes at least was conscious of the problem raised by Mayo was he?

Mr. Herbert Kassner: Yes Your Honor.

Justice William J. Brennan: He did side it.

Mr. Herbert Kassner: He didn't side it but Judge Oaks a good judge and he knew what he was doing when he wrote probability of success.

Justice William J. Brennan: If he did, why did he write as is to the Court in which it would have to fall?

That's a little inconsistent, isn't it?

Mr. Herbert Kassner: Sometimes, you --

Justice William J. Brennan: Well, at least the issue would be clearer if he had not used that sentence, would it not?

Mr. Herbert Kassner: Yes, it would, but I don't think that that should be made to overwrite the words probability of success which are absolutely clear.

Justice Mr. Justice White : Probably, (Inaudible) said, the District Court said that he probably use the sense at zero.

(Inaudible)

Mr. Herbert Kassner: Well, if you want to --

Justice Potter Stewart: Probability of success is 100%.

Mr. Herbert Kassner: Well, if you want to construe Judge Oakes meaning that, I don't construe his meaning that because he wasn't asked called unto rule on that and he was called unto rule on probability of success, he used the words probability of success, he meant that the statute was overbroad in his mind at that point, there was a probability of success because of the apparent overbreadth of the statute and by not sticking in the word apparent or I don't know whether you can make his opinion be a final determination or motion for preliminary injunction.

Justice William J. Brennan: Well any of that Mr. Kassner, you going to get neither the question whether because you got into the federal court first that takes care of the Younger problem and even in the M & L or whether would it --

Mr. Herbert Kassner: M & L.

Justice William J. Brennan: M & L?

Mr. Herbert Kassner: Yes.

All as I said before, on this point, all I'm going to do is merely restate what Judge Oakes said because I can improve on it.

He spoke about equity principles granting relief to two people in the same shoes as a third person with respect towards --

Justice William J. Brennan: That's your case but suppose we didn't have the other two parties, all we have was M & L?

Mr. Herbert Kassner: I'd be in trouble.

Yes I would.

Because, I don't think I should be but I know that I would be --

Justice William J. Brennan: You don't think that --

Mr. Herbert Kassner: I don't think I should be, no.

Justice William J. Brennan: If you won the race to the courthouse door by getting in the Federal Court --

Mr. Herbert Kassner: I think that should determine it because I think that that's the only reasonable fixed way to determine jurisdiction.

The state courts are no more entitled to adjudicate First Amendment Rights in the Federal Court.

I could make an excellent argument for the fact that the federal court is the prime court for the adjudication of constitutional rights.

Justice Mr. Justice White : Well it could (Inaudible)

Mr. Herbert Kassner: I don't know whether I'd lose that argument.

Justice Mr. Justice White : (Inaudible)

Mr. Herbert Kassner: No and Younger is an exception to that.

Younger is an exception to that because of doctrines of committee but there is no committee involved to remove Federal Court jurisdiction what's the Younger problem itself does not arise and the Younger problem is a pending criminal prosecution of the federal plaintiff at the time of the filing of a federal complaint.

That's what Younger says.

Now, I was disturbed by Younger but Younger is the law and that is the law.

Justice Thurgood Marshall: And look at --

Mr. Herbert Kassner: I'm willing to live with Younger but I don't want to see Younger expanded to --

Justice Thurgood Marshall: And you could be Younger, you won the race to the courthouse.

Mr. Herbert Kassner: Excuse me Your Honor.

Justice Thurgood Marshall: Looking at Younger, you won the race --

Mr. Herbert Kassner: Yes I did, yes I did.

Justice Thurgood Marshall: You first told your clients you better bide by this ordinance.

Mr. Herbert Kassner: I did.

Justice Thurgood Marshall: Then you ran into the Federal Court.

Mr. Herbert Kassner: And continued to tell them --

Justice Thurgood Marshall: Wait a minute, and then you said no, we got to get in the State Court too so you go violate the law now where you give them State Court.

And that had been an added multi court around you to go in that so.

Mr. Herbert Kassner: No Judge Marshall, you know I didn't do that --

Justice Thurgood Marshall: Then go to North Hempstead.

Mr. Herbert Kassner: You know I didn't do that.

Why did I want to create a Younger type problem?

Justice Thurgood Marshall: But you didn't go to the Admiralty Court, I agree.

Mr. Herbert Kassner: I advise all three of my clients to obey the ordinance at least pending the preliminary injunction determination.

Two of my clients followed my instructions; the third client said he couldn't take it.

Unknown Speaker: (Inaudible)

Mr. Herbert Kassner: Well, the denial of a TRO is not in adjudication of anything under merits.

Justice Thurgood Marshall: They're in very good shape.

Mr. Herbert Kassner: I know that -- that al three would've violated the ordinance as it was written but I didn't and I told them not to violate the ordinance and two obeyed and one didn't and the one didn't because of economic exigencies.

He couldn't stay in business with the cut on business and that's why he had to go about it.

Now, as long as we're talking Younger, why don't we talk about eight prosecutions in a period of three or four days?

Now, Younger clearly held, there is no suggestion that this single prosecution against Harris is brought in bad faith or as only one of a series of repeated prosecutions to which you will be subjected.

I don't think Younger applies if he would've been subjected in a prosecution before he filed his federal complaint.

I don't think the Younger case anyway.

Justice William J. Brennan: That's a harassment exception.

Mr. Herbert Kassner: Yes Your Honor.

I mean, Younger is clear on that point.

They serve three summonses, then they had five arrests and they closed the premises on four separate occasions

Justice Mr. Justice White : Do you thinks that's -- do you think that's true even though a TRO is denied and even though that the substantial issue about the preliminary injunction.

Mr. Herbert Kassner: Well, the --

Justice Mr. Justice White : What's the state suppose to do, (Inaudible) rush to the federal court for enforcing its federal laws?

Mr. Herbert Kassner: They had this going on for eight years before.

They could've waited 10 or 20 days.

Justice Mr. Justice White : My question is what do you suppose -- the state prosecutor supposed to do?

Mr. Herbert Kassner: Stay its hand until the judge determines the issue in the federal court.

Justice Mr. Justice White : (Inaudible) he files federal complaint, he supposed to put enforce and laws, is that it?

Mr. Herbert Kassner: It depends on what law you're talking about Your Honor.

Justice Mr. Justice White : We're talking about this one.

Mr. Herbert Kassner: Well if I were the -- if I were the local prosecutor and I saw that there was a substantial federal question involved in the ordinance, I might wait the 10 or 15 days that it would take the federal district judge to adjudicate the issue and not quite create the abrasion that they themselves are complaining about.

Justice Mr. Justice White : Well, I understand you -- I am understanding your point, what about your point.

We'll just give way to --

Mr. Herbert Kassner: My client should've waited.

My client should've waited.

Justice Mr. Justice White : And what adjudicate it -- what would he had done at the preliminary injunction has been denied.

Mr. Herbert Kassner: He would've been in more trouble than he was with the granting of the preliminary injunction and what would he have done? He might have continued, he might have stopped.

Justice Mr. Justice White : What was the prosecutor suppose to do?

Mr. Herbert Kassner: The prosecutor under the --

Justice Mr. Justice White : The final adjudication?

Mr. Herbert Kassner: No, Your Honor.

After a determination of the preliminary injunction hearing -- on hearings and on briefs, if it was determined that that should not be granted then I don't think the prosecutor is bound to wait any additional time but I think that he could've waited the 10 or 15 days that the rule have taken to avoid this abrasion that he complains about himself but I don't justify my client' conduct.

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

Thank you gentlemen.

The case is submitted.

Print this transcript Transcript:

Argument of Joseph H. Darago

Chief Justice Warren E. Burger: We'll hear arguments next in 74-337, Doran against Salem Inn.

Mr. Darago, I think you may proceed whenever you're ready.

Mr. Darago: Thank you Mr. Chief Justice, may it please the Court.

The appellant Francis F. Doran sued here in as Frank Doran is the town attorney of the town North Hempstead.

He is the chief legal officer of the town and the chief adviser to its legislature the town board made up of four town councilman and a supervisor.

The town North Hempstead is located in northwest National County and borders on the City of New York, Queens County that has a total population of 242,000 plus or minus and is made up of incorporated villages and unincorporated areas over which the town board exercises its jurisdiction.

The appellees in this case are owners and operators of certain establishments that sell liquor, bars as we would commonly call them, and they provide a form of entertainment which we referred to in everyday life as topless dancing.

On July 10th 1973, the town board of the town of North Hempstead undertook to enact the piece of legislation known as Local Law No. 1 of 1973.

Local Law No. 1 of 1973 became effective by filing with the secretary of State of New York on July 17th 1973 and simply stated it prohibited topless dancing.

On August 9th, the appellees in this case commenced an action in the Federal District Court for the eastern District Of New York charging Local Law No. 1 as being unconstitutional.

On September 26, 1973, by a decision of the Honorable John R. Bartels of the District Court, the statute in question was held unconstitutional.

The appellant appealed to the Circuit Court of Appeals of the United States for the Second Circuit and that the decision of Judge Bartels was affirmed by a 2-1 decision on June 26, 1974.

Basically, the challenge to the ordinance and the decision of each court below, was based on the doctrine that in cases where First Amendment Rights are concerned.

An examination of a statute on its phase and a determination after that examination that the statute is overbroad will make that statute fall.

We submit that in this case that doctrine of overbreadth should not have been applied.

The statute itself, the text of which is set forth in the brief on page -- beginning on page 3 provides in Section 1.0 that the town board undertook to regulate and control the operations of public places used as cabarets, bars, or lounges, dance halls, and discotheques, and other public places in general.

It defines public place in the Section, it defines cabarets, bars, lounges and discotheques and dance halls and that defines the person.

It then makes it unlawful to appear with one's breast uncovered if you're a female, once lower torso, if you're a male, and both the breast and the lower torso if you're a female.

In this next Section, it also makes it unlawful to promote the same that is to present it as a bar owner.

Traditionally, the police powers of the community have been recognized by this Court in the operation of local governments such as the Town of Hempstead.

Just recently in the village of Boraas against the village of Belle Terre this Court upheld a zoning provision allowing a locality such as the town of North Hempstead, in that case, the village of Belle Terre to define and enforce the definition of family for the purposes of occupancy of dwellings.

It is under these police powers, that the town of North Hempstead undertook to cutoff at the source the basic and originating problem or originating problem of certain complaints that had received concerning the operation of appellees establishments and establishments which are owned and operated by peoples not parties for this action.

Justice William H. Rehnquist: Mr. Darago.

Mr. Darago: Yes.

Justice William H. Rehnquist: Did each of the appellees in this case serve alcoholic beverages on the premises?

Mr. Darago: Mr. Justice Rehnquist, that is correct, all alcoholic beverages -- all of the appellees serve alcoholic beverages.

Justice William H. Rehnquist: The ordinance by its terms though would've covered people who did.

Mr. Darago: It is possible that the ordinance could be read that if no alcoholic beverages were served in a cabaret, which is the most unlikely I would think that it would cover a cabaret, yes sir, or a dance hall or a discotheque or an establishment of that nature, yes sir.

Justice Thurgood Marshall: I assume that the state legalizes people and dig many positions on this?

Mr. Darago: Mr. Justice Marshall, no.

They have been in contact with us but they have not -- well they would have jurisdiction over the licensing of bars, yes that is correct, yes sir.

Justice Thurgood Marshall: What they've got?

Mr. Darago: And they've taken no action to my knowledge.

The public record of the public hearing held will demonstrate the types of complaints that the town board received.

Similarly, the town of North Hempstead town board recognized that one or more of these establishments were within a hundred feet of residential areas that peoples who owned the residence within a hundred feet of these areas had made specific complaints about conduct of patrons, litter, noise, and things similarly important to the town in enforcing and keeping this suburban community, the town of North Hempstead a nice suburban community.

This concern we submit is the basis of at least some compelling governmental interest.

This compelling governmental interest is a relative term.

What is compelling for the United States as a whole may be a separate and distinct item as to what is concern -- the concern of a local community of 240,000 people.

One compared that the other, one may look very great and the other de minimis.

Wherein the town such as ours who -- which faces the everyday problems of living, noise, litter, patron's conduct around bars and incidentally, I might say that the record would justify the statement that on bars that didn't provide topless dancing, none of these complaints were ever voiced before the town board.

That the town board acted in a manner in which it thought would best remedy to the problems arisen.

Unfortunately, after the enactment, Judge Bartels found that the statute and used the words from Thornhill against Alabama by its wordings swept into areas of otherwise protected expression, we debate that.

Topless dancing is conduct.

It has been recognized by this Court as containing a minimal of expression and even assuming if any expression is there, it's still constitutes conduct.

One of the most striking facts about this Court's First Amendment opinions is their are absolute consistency that under a challenge to the First Amendment, the doctrine of overbreadth will be reserved to spoken words, freedom of expression, freedom to communicate one's ideas, freedom to gather and assemble peaceably to do just that express and communicate one's ideas.

Secondly, important in this case is the appellees here assert the rights of others and not of their own.

In this case, the appellees, and I'm referring at this moment to the appendix page 9 beginning with paragraph 16 of the complaint, “The law deprives the patrons of the plaintiffs' bars of the right to view constitutionally protected expression.

The law on its face and as applied to the exercise of First Amendment Rights as so discretionary and vague and overbroad the void of objective guidelines as to restrain and chill the exercise of such rights.”

It bears no relation to a governmental purpose, violates the First and Fourteenth Amendments.

It is interesting that the plaintiffs have not risen a -- excuse me -- have not brought up the subjects of their right to present this type of entertainment but of their right of their patrons to view the same.

If this has any element of expression, this topless dancing, it is further reduced by the fact that what the plaintiffs really are doing are commercionally exploiting nudity.

They haven't got a topless dancer or a naked dancer as they have now on the stage to express an idea, they've got a naked dancer on the stage to draw a patron into their establishments and to selling drinks.

As a matter of fact, their complaint although it has the magic words in it, chill, freedom of expression, belies the fact because they claim irreparable damage because when they don't have naked dancing, they lose money.

The ultimate facts that they've plead speak otherwise than to their claim that what they do is first -- is protected by the First Amendment.

We submit that so minimal if there is any expression in topless dancing is this expression that it constitutes conduct validly regulatable by the state.

Public nudity -- public nudity, nudity in public was a crime at the criminal law or at common law.

This is something that the state has the power to regulate.

Certainly, the state can make a law preventing nudity on the streets.

Under the police powers, they can make this law and enforce it.

Similarly in a public place for the good of the community, they can prevent exactly what we have going on in North Hempstead now, topless dancing.

In California against LaRue, this Court recognized the minimal amount of expression in topless dancing.

Eight or nine jurisdictions in this United States has reduced that expressive contain even further under this commercial exploitation of nudity idea.

In as much as topless dancing is conduct and not spoken words or pure speech, the doctrine of overbreadth does not apply.

Similarly, the appellees contention that would prevent the theatrical performance cannot be raised.

In California against LaRue, this Court clearly indicated that it would be unwise or do what the service to the ballet to compare a ballet dancer to that of a topless dancer in a bar.

Similarly, the likelihood that any appellee here would have in their establishments which are small, local, community bars the desire or even the facilities that put on a theatrical performance such as hair or the ballet just can't be conceived.

I'm sure that legislature of the town board considered the likelihood and the possibility of this.

Similarly, it may well be that should the appellees undertake to place a production such as hair or in their bar, they might be violating some other zoning ordinance.

Basically, it comes down to the rationale of this Court in its recent case of Broadrick against Oklahoma.

This statute with a fair reading of the words clearly shows that it applies for the appellees here.

There within that hardcore conduct which this statute was meant to prevent, topless dancing; they vicariously assert the rights of others to perform the ballet and to put on hair.

This vicarious assertion of rights even if it were in the area of political freedom, the right to participate in politics has been held by this Court to be no basis for declaring a statute overbroad.

We submit to you that topless dancing has been properly excluded and that courts below errored in approaching these topless dancers and this statute as if it barred free speech, as if it barred communication, as if it barred the right to express your ideas.

Justice Byron R. White: Was this ordinance declared unconstitutional?

Mr. Darago: Yes it was, Justice White, it was declared unconstitutional.

Justice Byron R. White: In the District Court?

Mr. Darago: In the District Court by John Bartels.

Justice Byron R. White: How about in this Court of Appeals?

Mr. Darago: Similarly, in the Court of Appeals it was held unconstitutionally overbroad and its enforcement was enjoined.

Justice Byron R. White: Well, there's only a preliminary injunction at issue.

Mr. Darago: That's true, Mr. Justice White, however --

Justice Byron R. White: Isn't there some room at the federal courts that you don't make the declaration of unconstitutionality and the issuing of preliminary injunction?

Mr. Darago: I'm not familiar with the rule Mr. Justice White.

Justice Byron R. White: But you think the --

Mr. Darago: The judgment is -- the injunction is as permanent as can be.

Justice Byron R. White: I understand the preliminary injunction was affirmed.

But that could've been merely on the chances of prevailing on the merits plus irreparable injury.

And I know the District Court said these statutes unconstitutional.

Would you think that the Court of Appeals said the statute was unconstitutional?

Mr. Darago: I believe it did.

Justice Byron R. White: Or the ordinance?

Mr. Darago: I believe it did.

Justice Byron R. White: I know it affirmed the judgment --

Mr. Darago: It did affirm the judgment but in affect --

Justice Byron R. White: Which means merely leaving the preliminary injunction on effect?

Mr. Darago: May I give the Court's attention to the second ordinance that the town tried to pass.

After rendering a similar decision, Judge Bartels upon a motion for summary judgment converted it to a final judgment and for all intents and purposes, this preliminary injunction could be rendered final by the sweep of a pen or Judge Bartels' order, it was not further --

Chief Justice Warren E. Burger: The dissenting opinion on Judge Vandarg here in the Court of Appeals directed entirely of the proposition that the state courts should've had the chance to construe this first because they might have come down with a narrowing construction limiting it to the framework of the LaRue case that is to this kind of conduct in a place were liquor was sold.

Isn't that the thrust of Justice Bartels then?

Mr. Darago: Well, that was the trust of Judge Lumbard's dissent in the Circuit Court of Appeals.

Chief Justice Warren E. Burger: Well, it is perfectly clear that the majority of the Court of Appeals and the district judge unlike the first district judge who dealt with it, all said it as unconstitutional.

Mr. Darago: And I believe so Mr. Chief Justice.

That is correct.

Chief Justice Warren E. Burger: On its face.

Mr. Darago: On its face, facially overbroad under Thornhill against Alabama that it could sweep into another area, for example, the specific example they used being theatrical performances in the ballet.

I think also that this case is a hybrid had not the District Court determined the existence of possible overbreadth.

They may well have abstained after not determining or finding that this was conduct under which the decisions of this Court do not render the overbreadth doctrine applicable.

I think that the federal court ignored committee which would be their respect for the lower state courts to do justice to constitutional claims and I think more importantly below they ignored equity.

Justice William H. Rehnquist: When you say comedy, are you talking about just abstention for a construction of the state law or are you talking about Younger against Harris and Steffel and those cases, are talking about both of them?

Mr. Darago: I'm talking about both of them Mr. Justice Rehnquist.

That's what I meant by this case being a hybrid.

I think that comedy is something that the federal court misread in the decision of Steffel that the federal courts are a powerful defender of constitutional rights and the rush to the courthouse rule created by the United States Court of Appeals overlooks that the state courts in which we all practice everyday are just as capable to handle a constitutional claim as are the federal courts.

And had they not determine and I submit erroneously that this was a free speech or spoken words case or overbreadth case, they probably would have abstained and send it back for prosecutions.

And incidentally, the prosecutions were called on the calendar of the local District Court prior to any decision by Judge Bartels and that therefore these people had been arraigned and were ready for trial.

We were ready for trial before any preliminary injunction was issued.

Similarly, I think that the equity of one of the plaintiffs here intentionally violating the statute as something that you Mr. Justice Rehnquist pointed out in your concurring opinion in Steffel against Thompson that even though a federal court decides to hear this case and render its decision, it does not protect the plaintiff from intentional violations of the ordinance without threatening the laws of his federal case for dismissal.

I think Younger against Harris made that clear as well that at any time, if the facts wanted, this Court -- the federal courts could remand this cases to state prosecutions.

I think this is an important idea and I think this is the very case that Steffel contemplated and that Younger contemplated.

There's nothing noble about what we call post facto abstention where equity warrants the same.

And in this case, we have one of the plaintiffs to admit the lead do not violate it.

But one of the plaintiffs did and there was a kind of a privity between the plaintiffs here.

If not that the jury privity but in fact a factual privity that this people are altogether, they're common owners, they watch each others stores so to speak when one is out and one is in, and the privity is so close that all the issues of this case.

Justice William H. Rehnquist: What do you mean by privity and that's as are you're speaking about it in any sense recognized in the law that is that there are common owners of this three people.

Mr. Darago: No, Mr. Justice Rehnquist, what I'm saying is that there was a factual privity that these three people got together to challenge this ordinance, they had one attorney, they brought one action under the Civil Rights law and as such when one of them undertook to violate the ordinance, the District Court should've examine that closely and said, “Well, you've made your own bed now back to the state courts which can remedy your constitutional claims as well as we can.”

Justice William H. Rehnquist: Well, certainly there's nothing unusual on a bunch of café owners or bar owners getting together to consult about in ordinance that affects all of them.

Mr. Darago: I don't suggest that that is, that there is anything unusual about it.

Justice Thurgood Marshall: Did you raise this in the District Court?

Mr. Darago: Yes, Mr. Justice Marshall, I did.

Justice Thurgood Marshall: Even in the Harris point?

Mr. Darago: Yes, Mr. Justice Marshall, as a matter of fact, they raise the footnote which is number four -- footnote 4, I can't recall what page on which it is, which almost clearly outlines the very same thing that this Court held in Younger and --

Justice Thurgood Marshall: You said footnote, footnote what?

Mr. Darago: There was a footnote in Younger against Harris explaining the applicability of overbreadth.

Justice Thurgood Marshall: And you raised it?

Mr. Darago: I raised it, yes.

Justice Thurgood Marshall: And preserved it?

Mr. Darago: I'm sorry.

Justice Thurgood Marshall: And preserved in the Court of Appeals I assume since General Lumbard is one of them?

Mr. Darago: Yes, Your Honor, I did.

Justice Potter Stewart: Chronology in this case is what?

These three plaintiffs brought this item --

Mr. Darago: They brought an action under the Federal Civil Rights Act.

Justice Potter Stewart: In the United States District Court.

Mr. Darago: In the United States District Court and they brought it on the seventh, I'm sorry, on the 8th day of -- 9th day of august 1973 Mr. Justice Stewart.

Justice Potter Stewart: Did they ask for a TRO?

Mr. Darago: They ask for a temporary restraining order and the same was denied by Judge Dooling.

Justice Potter Stewart: Right.

Mr. Darago: The day after he denied that, one plaintiff M & L Rest began to violate the ordinance and on the 10th --

Justice Potter Stewart: Began to violate the ordinance by doing what?P

Mr. Darago: resenting topless dancing.

They had complied -- the bar owners had complied with the ordinance between the 17th when it became effective and the 9th when they brought this federal action.

On the 10th after the TRO was denied and after this action was -- after the action was commenced in fact, M & L Rest began to present topless dancing.

The police came down, issued summonses to dancers, owners, and a prosecution was in fact begun.

Justice Potter Stewart: On what day?

Mr. Darago: On the 10th of August 1973.

Justice Potter Stewart: And so the arrests were made.

That's when the --

Mr. Darago: The arrests right.

The following day they were arraigned.

Informations were filled out, we have an information system, a uniformed system of a simplified criminal complaints.

Justice William J. Brennan: Well, if you're right the criminal proceeding I gather, it was the day after the federal suit started, wasn't it?

Mr. Darago: That is correct Mr. Justice Brennan.

Justice William J. Brennan: I'm quite assuming even though -- even in that circumstance that the Younger rules apply, that wouldn't be too as to Salem Inn and Tim-Rob Bar, would it?

Mr. Darago: No, that is not --

Justice William J. Brennan: To say they were no --

Mr. Darago: They were not being prosecuted.

Justice William J. Brennan: Or even threatened to, because I gather they came with the compliance, didn't they?

Mr. Darago: They did comply.

Justice William J. Brennan: Yes.

Mr. Darago: And incidentally they complied right through judge --

Justice William J. Brennan: If that's so, I gather was it wrong then in -- of the federal court to reach these questions in those two cases?

Mr. Darago: I think it was --

Justice William J. Brennan: Why?

Mr. Darago: -- Mr. Justice Brennan.

I think that in this case, this factual privity of which I spoke before rendered each of them the issues that they claim --

Justice William J. Brennan: Because they were all in the same business and they were all bothered with the same --

Mr. Darago: With the same ordinance and they all had the same attorney and Mr. Justice Brennan, had they waited they would've had the issues disposed off in our local District Court, which is our lowest court of criminal jurisdiction, by the time Judge Bartels had rendered his decision.

Justice Byron R. White: Well, how'd they finally go in jail.

Mr. Darago: Well, no arrests were made, they had been issued summonses Mr. Justice White.

Justice William J. Brennan: But if Tim-Rob -- if M & L Rest would lowest doubt in the District Court, they still want to go ahead.

Mr. Darago: Then they would have the opportunity to go through our appellate system or for that matter.

Justice William J. Brennan: -- if Tim-Rob was or M & L wasn't interested in appealing your appellate system because they do.

Mr. Darago: I think that once there was no appeal taken, the law of this situation would have been decided.

We would have a narrow in court decision of this ordinance or this local law which would give the proper federal jurisdiction.

Justice William J. Brennan: If they had a conviction.

What is your local court, what is it?

Mr. Darago: The District Court of Nassau County.

Justice William J. Brennan: I mean what's its equivalent?

Is that to --

Mr. Darago: I would say --

Justice William J. Brennan: Is that like a local magistrate or?

Mr. Darago: No.

It's higher than a local magistrate's court but not quite as high as a court of original civil jurisdiction like our Supreme Court.

I would say that once that case had been interpreted by the Court in the case of M & L Rest, then the other plaintiffs would have something to bring to the federal court because there would be a narrowly construction to review.

Justice Potter Stewart: But why -- if there were incompliance, why would they have standing at all?

Mr. Darago: Well, once again we assume that their constitutional objection under the First Amendment will be reviewed by the District Court.

They've --

Justice William J. Brennan: I suppose that could run to a threat of enforcement anyway, weren't they?

Mr. Darago: No more threat than under the enforcement that if I speed, I'm going to get a ticket, Mr. Justice Brennan.

Justice William J. Brennan: Well I know with much as Steffel was in Steffel case of the criminal prosecution was pending against someone else not against him?

Mr. Darago: Absolutely and he had absolute right but once again, in Steffel, he was handbilling, he was expressing ideas, he was communicating.

Justice William J. Brennan: Well he wasn't --

Mr. Darago: He wasn't --

Justice William J. Brennan: -- when the was suit brought.

Mr. Darago: No, he had stopped because he showed eminent threat of arrest under what he in turn to be an overbroad statute.

But once again it was free speech.

Justice William J. Brennan: Are these two bars on any different position than he was?

Mr. Darago: I think so under the decisions of this Court and as much as they're presenting topless dancing which is conduct and not some form of communication like Mr. Steffel or Mr. --

Justice William J. Brennan: Well, Steffel wasn't handbilling either.

He run into federal court and said, “I'm entitled to hand do but I'm not going because I don't want to be prosecuted as I've been threatened.”

Mr. Darago: Absolutely and I think --

Justice William J. Brennan: And soon people said I'm in federal court because we want to attach our ordinates.

Meanwhile, we're going to come into compliance.

Mr. Darago: As overbroad is what they said Mr. Justice Brennan.

Justice William J. Brennan: Well they did, that's what they came into.

That's why they came into compliance.

Mr. Darago: Absolutely.

Justice William J. Brennan: I don't see how much difference in stuff here.

Chief Justice Warren E. Burger: I take it to your point is that in one in the Steffel case, there was an explicit First Amendment claim and here you'll say there's no basis whatever for a First Amendment?

Mr. Darago: And absolutely -- a proper case for which this court's decision on overbreadth could be applied, the right to pass out literature to express oneself.

Justice Potter Stewart: Because there is an explicit First Amendment claim in the complaint in this case.

Mr. Darago: That is true.

Justice Potter Stewart: Do you think it's just not --

Mr. Darago: I think that --

Justice Potter Stewart: Valid?

Mr. Darago: I don't think that the First Amendment claim is valid in that misconduct of topless dancing contains such minimal amounts of discretion under U.S. against O'Brien and cases of that sort.

We properly as to the town of North Hempstead prohibited this kind of activity within the town boundaries.

I would like to reserve a couple of minutes for rebuttal if possible.

Chief Justice Warren E. Burger: Counsel, I will not ask you to divide your argument.

There's only about a minute and a half left.

We'll let you begin fresh at 10 o'clock tomorrow morning.

Print this transcript Transcript:

Argument of Herbert Kassner

Chief Justice Warren E. Burger: We'll resume arguments in Doran against Salem Inn.

Mr. Kassner.

Mr. Kassner: Thank you Mr. Chief Justice and may it please the Court.

I think that initially I should review the facts which were scantly reviewed yesterday because there seems to be some misapprehension as to what actually took place.

Appellees herein where owners and operators of premises in which food and liquor was served; one for a period of eight years, one for a period of five years and one for a period of about two years.

At the time the town of North Hempstead passed its ordinance, during that period, they had offered their patrons topless dancing entertainment.

The ordinance forbade the appearance in any public place and underlying any public place of a person with the breast uncovered or with the lower part of the torso uncovered.

This was the broadest imaginable prohibition, it covered every place in the town of North Hempstead and it specifically covered any scene, sketch, act, or entertainment.

In that regard, it was clearly affecting a theatrical performance presumptively protected by the First Amendment.

Now, to -- [Voice Overlap] -- it wasn't covering anything but live people.

Unknown Speaker: Okay.

Mr. Kassner: The appellees did not offer entertainment by a way of topless waitresses.

They did not offer topless bartenders.

What they had was, a real stage, segregated from the patrons on which professional dancers were employed throughout the day to offer dancing entertainment.

These professional dancers were hired through theatrical agencies.

Some of them were employed in ballet work in the City of New York and did this to earn extra money.

This wasn't a situation of -- which was alluded to in LaRue I believe to (Inaudible) in a place it served liquor.

I don't know whether they're serious or not serious in that contention but it would seem that the statute was enacted.

The ordinance was enacted under this theory.

It seems that they denied the existence of a supremacy clause.

They claim that they could undercut the evils, various nuisance evils at the source by passing this type of an overbroad speech inhibiting ordinance.

Mr. Kassner: Had the state liquor authority in the State of New York drawn an ordinance as sanctioned under LaRue involving the licensee, the sale of liquor in premises where this type of activity went on, yes they could've done so Your Honor.

Justice William H. Rehnquist: Do you say the state liquor authority but you went into federal court to challenge this provision.

I think you pretty well have waived that by failing to litigate that in the state courts.

Mr. Kassner: Well, Your Honor I haven't litigated that here, I don't think I need it.

Justice Byron R. White: Why not?

Mr. Kassner: Because --

Justice Byron R. White: It isn't regulating liquor is just saying there won't be any nude dancing in bars.

Mr. Kassner: That's not what they've said in this ordinance You Honor.

Justice Byron R. White: I know but let's assume they did.

They had a local ordinance so there shall be no nude dancing in any place for liquors so is that what you say -- that's not within the power of municipality?

Mr. Kassner: Yes, Your Honor.

Not within the power of the town of North Hempstead.

Justice Byron R. White: That's what you're saying?

Mr. Kassner: Yes, Your Honor.

Chief Justice Warren E. Burger: Is that an issue before us?

Mr. Kassner: No Your Honor.