Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CITY OF DALLAS, et al., Petitioners v. CHARLES M. STANGLIN, INDIVIDUALLY, AND dba TWILIGHT SKATING RINK

No. 87-1848

March 1, 1989

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:47 o'clock p.m.

APPEARANCES:

CRAIG LEE HOPKINS, ESQ., Assistant City Attorney, Dallas, Texas; on behalf of the Petitioners.

DANIEL J. SHEEHAN, JR., ESQ., Dallas, Texas; on behalf of the Respondent.

PROCEEDINGS

1:47 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 87-1848, the City of Dallas v. Charles M. Stanglin. Mr. Hopkins?

ORAL ARGUMENT OF CRAIG LEE HOPKINS ON BEHALF OF THE PETITIONERS

MR. HOPKINS: Mr. Chief Justice, and may it please the Court.

Does the City infringe a minor's right of association by allowing dance halls to operate in the City of Dallas and admit those ages 14 to 18 only?

I will address that there is no constitutionally protected right of association in a dance hall; that it would be unwise to expand constitutional protection to include such a right; and that even assuming there is some right implicated by the ordinance that is challenged, the City does not infringe that right by the ordinance challenged. And in any case, the City has a rational and even compelling interest in regulating dance halls for the protection of minors.

QUESTION: Well, now, do you say that the First Amendment doesn't protect any right of social association?

MR. HOPKINS: Yes.

QUESTION: Okay.

MR. HOPKINS: We place reliance on the Roberts precedent not only because it is the most recent analysis of associational freedoms, but also because it is reasonable. This Court in that precedent without dissent tied associational freedom to the Bill of Rights and found protection first for intimate relations central to the concept of personal liberty.

The -- all of us as American citizens enjoy a high degree of personal liberty, but we do not enjoy the personal autonomy alleged by Respondents in this case. We do not enjoy the autonomy in all things that may serve us as recreation.

QUESTION: Well, do you think the City could adopt an ordinance telling all 14-year olds that they may not under any circumstances in their lives have any association with people over 18?

MR. HOPKINS: No, I think that would be going much too far.

QUESTION: Then there is a right of social association.

MR. HOPKINS: No, there's not a constitutionally protected right of association. Of course, minors as -- as all of us, have personal liberty, but there is nothing in the Constitution which would guarantee purely recreational association.

I think for a city to make such a blanket prohibition would be similar perhaps to the D.C. City -- City Council submitting to the mayor the curfew ordinance. I think that may not be a constitutional infringement, but I think -- as far as social association, but I think it raises equal protection problems and -- and other sorts of constitutional --

QUESTION: You don't think equal protection is a constitutional principle?

MR. HOPKINS: It is a constitutional principle. What I mean to say is that ordinance would probably not infringe the alleged constitutional protection of social association. But it would implicate other constitutional protections. And for that reason, I think that your hypothetical and perhaps others would be going too far.

Dance halls do not exhibit the characteristics of intimate associations that this Court has protected in the past. They are primarily large gatherings. Mr. Stanglin's testimony in the district court was that it was not unusual for there to be 800 to 1,000 persons in his establishment. They are not selective in who they admit to the dance hall, and I think it's reasonable to think that of 800 or 1,000 teenagers, a large percentage are going to be strangers to each other. And I think it is not reasonable to compare such a setting or such an atmosphere with, for example, the marital bedroom.

This Court has also recognized constitutional protection in the area of expressive association, in other words, gathering to exercise rights guaranteed by the First Amendment, such things as freedom of speech, religious beliefs and to petition the government. However, the dance hall that is involved in this case is not an association at all in the sense of being an organization with a collective identity.

Patrons do not gather at a dance hall primarily to exercise their right of free speech or to petition the government, nor do they primarily go there to exercise religious beliefs. So, although minors do enjoy personal liberty to some extent, they do not have this autonomy that Respondents allege in whatever serves them as recreat on.

I think it would be unwise to give credence to Respondent's suggestion of social associational rights because it would chill the efforts of state and local governments to create age-appropriate categories for the use of municipal facilities or what have you.

QUESTION: I take it some part of your argument, Mr. Hopkins, depends on the fact that the plaintiffs are minors. You would find it a more difficult ordinance to justify if it regulated adults under 35.

MR. HOPKINS: Yes, Your Honor. A primary tenet of my argument is the fact of their minority because I believe that the First Amendment assumes the capacity to exercise independent judgment, and minors cannot be assumed to have met that prerequisite to exercise First Amendment rights.

QUESTION: But, Mr. Hopkins, I'm a little --

MR. HOPKINS: I think it's --

QUESTION: May I interrupt? I'm just a little puzzled.

I thought your first point is that there's just no constitutional right at stake here anyway.

MR. HOPKINS: Correct.

QUESTION: Well, why would -- what would the constitutional right be at stake if it was a 30 to 35-year ordinance instead of a 14 to 18?

MR. HOPKINS: My position is there is no right for them either.

QUESTION: So, that would be the same case then.

MR. HOPKINS: Correct.

QUESTION: So, then why are you arguing about young people?

MR. HOPKINS: Well, assuming that you might find some associational right --

QUESTION: I see.

MR. HOPKINS: -- their minority is just an added -- the fact of minority is the compelling interest should you decide to apply that strict a scrutiny to the City's ordinance.

As I was saying, if the City of Dallas' ordinance is invalid based on its regulation of minors, what then of the City's ability to regulate, for example, campgrounds or swimming pools, as amicus have suggested, purely on the basis of age?

QUESTION: Well, don't you -- don't you think that dancing is some form of expression?

MR. HOPKINS: In a very broad sense, everything we do is -- is a form of expression.

QUESTION: Well, do you think you'd have the same reaction if this ordinance prevented people between the age of 14 and 18 from taking ballet lessons?

MR. HOPKINS: I don't think that it would infringe a constitutionally protected right.

QUESTION: How about music lessons?

MR. HOPKINS: There again unless it is -- I don't think the Constitution would be implicated in that case.

QUESTION: How about singing lessons?

MR. HOPKINS: Same thing.

QUESTION: Speaking?

MR. HOPKINS: It depends on what kind of speaking. I think you are getting closer toward what might be wrapped up in the exercise of freedom of speech. Perhaps they're taking a speech class that centers on a particular issue. I don't know. But I think you're getting closer to it.

QUESTION: Let me give you a hypothetical. Supposing a 15 or 16-year old person was taking dancing lessons from a person over 21 and became quite expert, and wanted to show his or her classmates and friends how expert he or she was, and wanted to give kind of a demonstration of it. And the only place that it could be done is in a dance hall like this, or the only place that would happen to be available. You wouldn't think they would have -- there would be any constitutional interest whatsoever respecting that.

MR. HOPKINS: No, I don't believe our ordinance would infringe any assumed right because it doesn't ban the dancing. It doesn't ban the demonstrations.

QUESTION: It bans dancing with that particular partner.

MR. HOPKINS: It doesn't even ban dancing with an older person because there are exceptions to the ordinance. For example, dances at schools are completely exempt from the ordinance. A school does not have to obtain a dance hall license.

QUESTION: Oh, right. But at least it bans them in this dance hall.

MR. HOPKINS: Correct.

QUESTION: Yes.

QUESTION: But you don't have to give that answer anyway because you don't think there's any constitutional right involved at all.

MR. HOPKINS: Correct.

QUESTION: So, you don't have to distinguish these cases.

MR. HOPKINS: No, I don't.

QUESTION: And you don't have to worry about picnics and swimming pools and any -- because there's no constitutional right at all.

MR. HOPKINS: Correct.

QUESTION: All right.

QUESTION: No associational right. You're making your case harder than it has to be.

MR. HOPKINS: Well, I assume he means --

QUESTION: I assume -- I assume that the state would have to have a reason to -- to prevent people over -- over 18 and under 35 from going dance halls. They just couldn't -- right? I mean, there are some provisions of the Equal Protection Clause, for example.

MR. HOPKINS: Correct, correct.

QUESTION: You're saying that there may be reasons why these things are invalid, but they're not invalid because of any -- any infringement upon associational rights.

MR. HOPKINS: Correct.

To take that and -- and expand on it, the City in this case has found such a basis for -- for coming to the conclusion that the ordinance is needed. We don't feel that it is -- that it has implicated any constitutional right, but we do feel we're justified in doing it nonetheless, even if you assumed some right.

QUESTION: You mean you don't have to justify it at all?

MR. HOPKINS: I'm saying that in this particular case, the -- the part of the ordinance that is challenged does not bring into question any constitutional provision.

QUESTION: Well, that means you don't have to give a reason.

MR. HOPKINS: Correct. And on the -- as far as the ordinance being challenged.

QUESTION: And the -- the reason you don't have to give a reason is because young people don't have any constitutional rights. Is that your position?

MR. HOPKINS: No, that's not my position.

QUESTION: It's kind of close, though, isn't it?

(Laughter.)

MR. HOPKINS: Well, they have constitutional rights. And in the associational context, they have associational rights for intimate relations, which are not implicated here, and they have constitutional rights to associate for expressive purposes in engaging in their First Amendment rights of free speech, et cetera, which is not implicated here.

QUESTION: But any time you classify, you -- you may raise questions under the Equal Protection Clause, may you not?

MR. HOPKINS: It could be raised. It has not been asserted at this level.

QUESTION: Is any young person a party to this suit?

MR. HOPKINS: No.

QUESTION: Just -- just the proprietor of the combination skating rink and dance hall.

MR. HOPKINS: Correct.

QUESTION: Is he in a position to assert there the young people's constitutional right?

MR. HOPKINS: We have not challenged their standing in this Court. I think it's at least arguable under some of this Court's decisions that they do have standing because of his economic injury that he alleged in the district court.

QUESTION: You challenged it below, didn't you?

MR. HOPKINS: I don't believe we've ever challenged his standing.

QUESTION: I see. I see. All right.

But the court addressed it.

MR. HOPKINS: Yes, I believe the court of appeals addressed --

QUESTION: Well, does the Texas Court of Civil Appeals have a standing requirement similar to those of Federal courts?

MR. HOPKINS: Yes, I'm sure they have a standing requirement. And I believe the court of appeals said that because of his economic injury, he does have an injury caused by this particular ordinance and thus is -- was appropriate in challenging it himself.

The court --

QUESTION: Has he demonstrated it, economic injury?

MR. HOPKINS: He testified in the district court. The record reveals that he felt like the ordinance would restrict who he could admit and that it would cut his business and -- and the -- and the uncertainty of that type of business was such that it is very easy to go out of business with just a swing of the mood of the patrons to go patronize another establishment.

QUESTION: Even though there were 800 to 1,000 youngsters --

MR. HOPKINS: Correct.

QUESTION: -- there. How large?

MR. HOPKINS: Yes.

QUESTION: Can it -- can it take 5,000?

MR. HOPKINS: I don't think it would hold that many. I think the testimony in the district court was that he would have anywhere from three to 1,000, but that it was not unusual for there to be two -- 200 to 800 to 1,000 on big nights.

QUESTION: Did -- was this ordinance a replacement of a previous regulation that was more restrictive?

MR. HOPKINS: No. It is an expansion of an existing ordinance. Before the challenged ordinance went into effect, minors could not go to an adult dance hall without their parent or guardian.

QUESTION: So, this ordinance actually was more generous to the owner than the --

MR. HOPKINS: That's our position, yes.

QUESTION: -- the previous ordinance.

MR. HOPKINS: Because after it goes into effect, minors still cannot go to the adult dance halls without their parent or guardian, but they now also have what we call the Class E dance hall which is just for the 14 to 18-year olds. So, the practical effect of the ordinance challenged is that it's an expansion of their associational abilities. They have more places they can go.

As amicus characterized it, it's -- it's more or less a safe harbor for them in the dancing context.

QUESTION: If this is Class E, you must have all kinds of classes in Dallas.

MR. HOPKINS: Basically -- or very generally speaking, Classes A, B and C differ -- are all adult dance halls and differ as to the number of days per week that dancing is allowed. Class D dance halls or dance -- are dance instruction halls. And then the Class E is the teen dance halls.

QUESTION: And is Class E -- is the Class E the only kind of dance hall a minor can go to?

MR. HOPKINS: No, he can go to -- he can go to a dance instruction hall without restriction.

QUESTION: How --

MR. HOPKINS: He can go to adult dance halls A, B or C with their parent or guardian.

QUESTION: Well, this operator is the one who got himself into the E category. He could have been an A, B or C, couldn't he?

MR. HOPKINS: He also held a Class B license at the same time he held a Class E license. The problem with having both of them, obviously, resulted in the fact that he couldn't allow in people over 18 if he was going to allow in the younger people without their parents.

QUESTION: Right.

MR. HOPKINS: So, yes, in -- in some degree it was of his own volition.

QUESTION: Are they all open on Sunday in Dallas?

MR. HOPKINS: Pardon?

QUESTION: Are they all open on Sunday in Dallas?

MR. HOPKINS: I believe they are.

The court of appeals suggested that the City's ordinance was overbroad, but I believe that analysis is flawed for several reasons.

First of all, there is no substantial interference with a protected right. As I began, I mentioned that our position is there is no constitutional right to associate in a dance hall. But even if you were to assume such a right, the ordinance challenged expands that right and not -- it does not constrict it.

Even if you assumed that facts were appropriate to consider an overbreadth argument, I think the ordinance clearly withstands that scrutiny because it is a very narrow response to a specific request of the community to create a dance hall opportunity for the kids without the requirement that the parents go along with them. It regulates only that one type of business. And the exceptions keep the City out of the constitutional issues because we have exempted schools and churches, government facilities and the like from having to obtain a dance hall license.

QUESTION: Mr. Hopkins, in your brief at some place I think you suggest that in any event this is a reasonable time, place and manner regulation.

MR. HOPKINS: Yes, Your Honor, I believe that it is. It can be characterized as such because all we do --

QUESTION: Have you found any of our cases applying reasonable time, place and manner regulations to a so-called right of association?

MR. HOPKINS: No. We would rely primarily on the Roberts and Rotary Club decisions most recently.

The other -- another reason why an overbreadth argument would be inappropriate here, as I mentioned, was because the citizens specifically petitioned the government for this response. In fact, Mr. Stanglin himself approached city council members and asked that there be a place such as a Class E dance hall. And --

QUESTION: Overbreadth just applies if there's a First Amendment category and if there isn't any First Amendment protected interest --

MR. HOPKINS: Correct.

QUESTION: Mr. Hopkins, both Roberts and Rotary recognized a constitutional right of association.

MR. HOPKINS: Correct.

QUESTION: And I don't quite understand. Why do you rely on those decisions?

MR. HOPKINS: We rely on those cases because they recognized --

QUESTION: Not to support your argument that there's no constitutional right of association in dance halls. Is that right? You don't rely on them for that.

MR. HOPKINS: We rely on them because they outline which types of association that receive constitutional protection.

QUESTION: Yes, I remember.

MR. HOPKINS: Okay.

The -- the court of appeals also suggested and Respondents suggest that there are other ways to accomplish the City's objectives, police enforcement of other statutes, for example. I would concede that there are additional ways of combatting the problem of juvenile crime and the influence that older people can have on them to turn to drug abuse and alcohol abuse and the like, but I will not concede that there's a less intrusive way of achieving this result in the dance hall context because the police department have -- are working on the problem outside the dance hall, but not inside.

The punishment that the court of appeals suggests does not work until there's a victim. And it assumes that a perpetrator is caught and that there is some deterrent effect.

And supervision is not appropriate in this case because the parents have said they don't want to have to go. That's the first problem.

The second problem is if there's 1,000 teenagers in this establishment, how are you going to effectively prohibit or prevent the undue influence from reaching them before it's too late.

Thus, consistent with this Court's analysis in the City of Renton case, the City of Dallas is attacking the juvenile crime problem this one step at a time, and they're doing it in the least intrusive way that they can in this dance hall context.

I think to expand constitutional protection beyond its already defined limits in this area would be unwise because it would chill the efforts of the governments across the entire spectrum of age-appropriate categories to effectively protect people on account of their minority.

I'd like to reserve the rest of my time for rebuttal.

QUESTION: Thank you, Mr. Hopkins.

Mr. Sheehan, we'll hear now from you.

ORAL ARGUMENT OF DANIEL J. SHEEHAN, JR. ON BEHALF OF RESPONDENT

MR. SHEEHAN: Mr. Chief Justice, may it please the Court.

I had prepared remarks intended to demonstrate to the Court that the City seeks here to say that there is no constitutional right of association for minors. After Mr. Hopkins' remarks that you have just heard, I don't think it's necessary for me to -- to deliver that.

We are asking the Court to protect the right of the people to associate together even if the purpose is entirely social and even if the purpose may seem trivial to many.

To say that there is no constitutional right at all to associate in the type of context presented in this case is to say that the state is immune in this area and may do anything that it chooses to do even if that act is arbitrary and irrational.

QUESTION: Well, there's a constitutional right to walk down the street too, but that doesn't mean that every -- every state statute that interferes with my walking down the street is subject to strict scrutiny. I mean, you have some constitutional protection; that is, it can't be taken away without reason. It has to be taken away on an equal basis with other people.

I -- I don't understand the state here to be arguing that there is no constitutional right. They're just saying that this is not -- this is not the sort of association that is governed by -- by our cases saying that the First Amendment attaches to it. That's not the same thing as saying there's no -- no -- no constitutional protection for it.

MR. SHEEHAN: With due respect, Justice Scalia, I believe they are arguing that there is no constitutional protection and they're not restrained even by a rational basis test.

QUESTION: I thought -- I thought they agreed that they were subject at least to equal protection scrutiny, that you couldn't single out one class of people arbitrarily and say you can't go to the dance hall, but everybody else can. I thought their argument was that there's, no First Amendment protection for it.

MR. SHEEHAN: Mr. Chief Justice, I heard that statement made this afternoon and the concession that they would be restrained by equal protection considerations. But --

QUESTION: That's not really a concession. Everybody is -- every governmental action is restrained by equal protection considerations.

MR. SHEEHAN: I agree, and I also agree that every governmental action is restrained by the need to have some rational basis.

I think the City's position, at least as I'm reading it in the brief, is not that there is no -- is not that they need not only demonstrate no compelling interest, but that they need not demonstrate even a rational basis. I'll read from the reply brief of the Petitioner.

QUESTION: Well, we'd also like to hear your -- you know, I think the -- probably the Petitioners' position is -- we can assume is fairly clear -- have from the Petitioner, so to speak. I am sure we would like to hear your -- your position too.

Do you think this is subject to something more than rational basis scrutiny, this sort of an ordinance?

MR. SHEEHAN: I think that the -- yes, I do. In --

QUESTION: Why?

MR. SHEEHAN: -- many instances, the type of association that I am addressing is entitled to a compelling state interests standard, is required to be more than the rational basis standard.

QUESTION: The right to --

QUESTION: (Inaudible). Excuse me.

QUESTION: The right to go to a dance hall?

MR. SHEEHAN: The right to dance together with persons of your choosing.

QUESTION: Well, they have ample opportunity to do that in school, in private clubs, at a home, every place, just not a Class E dance hall. Isn't that right?

MR. SHEEHAN: It is, Justice O'Connor, but I don't think that that's the appropriate analysis. For example --

QUESTION: Well, that certainly is a factor for the analysis. They have ample opportunity to dance.

Whose associational rights are you here advocating?

MR. SHEEHAN: The associational of everyone, not just minors because I don't regard this as strictly a minor's associational rights case.

QUESTION: So, who do you think you're representing? The right of everybody to go to the Class E dance hall?

MR. SHEEHAN: Yes.

QUESTION: Uh-hum.

MR. SHEEHAN: I can't go to a Class E dance hall. It isn't a minor's constitutional rights case. The purpose of the statute is protect the minors. But the prohibition extends to everyone, and in that sense it's different than the cases that deal with minors and minors alone.

But to say that they can dance elsewhere is simply, with due respect, I don't believe the proper analysis. In the Roberts v. Jaycees case, for example, the argument could have been made by the Jaycees that the -- that the Minnesota anti-discrimination statute really didn't impose that much restriction on their liberties because, first of all, there were plenty of organizations that those women could join other than the Jaycees. And, secondly, how many women are truly going to be interested in joining an organization whose avowed purpose is a promotion of young men's civic organization?

QUESTION: Well, but of course the Court has applied a higher level of scrutiny to gender discrimination and racial discrimination. That's not involved here, is it?

MR. SHEEHAN: No, it's not.

QUESTION: Mr. Sheehan, are you arguing for a strict scrutiny standard or rational justification?

MR. SHEEHAN: Justice Brennan, I'm -- I'm arguing for the same type of standard that I believe was established in the majority opinion that you authored in Roberts and -- for intimate associations where you said there are two poles. One is the family. The other end of the extreme may be measured by large business enterprises. At the family end it's entitled to probably the highest protection the Constitution allows. Whereas where the relationship is much more attenuated at the large business enterprise end, it's not expressly stated what standard will apply, but it's certainly not going to be the compelling state interest one.

QUESTION: And you classify this with the family, intimate association?

MR. SHEEHAN: No, sir, not necessarily. I -- I classify social associations as being subject to being evaluated or that same type of spectrum. There may be some social associations whose purpose is to enjoy together ballet, as Justice White asked about. And that is such a clear cultural and expressive type of activity, that any attempt to restrict that may well be subject to the strict scrutiny test, whereas the ability to go into --

QUESTION: What about a law prohibiting the scalping of ballet tickets by the state? Would that be subject to strict scrutiny?

MR. SHEEHAN: No, I don't believe it would be. I would not subject that to the strict scrutiny test because it doesn't infringe on anyone's right to participate in the association.

QUESTION: Are you defending the - the decision and the opinion below?

MR. SHEEHAN: Yes

QUESTION: That was a strict -- it was a strict scrutiny case, wasn't it?

MR. SHEEHAN: It -- it's not 100 percent clear to me. But, yes, I think it is although when they get to the age restriction, the court gets to -- the age restriction appears to be evaluated with that standard, whereas the standard dealing with the hours is -- the -- the court makes a comment --

QUESTION: Well, they sustained that.

MR. SHEEHAN: And on the basis that it's a minimal intrusion on the associational rights. Therefore --

QUESTION: But on the age, it's the least restrictive means, isn't it?

MR. SHEEHAN: Yes.

QUESTION: Strict scrutiny.

MR. SHEEHAN: Yes.

QUESTION: Now, do you defend that?

MR. SHEEHAN: I don't -- I do not defend that entirely. I do not defend across the board.

QUESTION: Well, not across the board, but how about in this case?

MR. SHEEHAN: All right. In this case, I would defend it on the basis of dance being an expressive activity. And the reason I say that is this.

What has been singled out here for legislation by the City of Dallas is the ability of people to dance together. They are free to do other things together. I believe that that is a legislative disapproval of the activity of dancing which has a centuries-old history of being an expressive activity.

QUESTION: What about a law in a state which prohibited sodomy prohibiting men from dancing with one another? Would you say that was subject to strict scrutiny?

MR. SHEEHAN: Yes, I would for the reason that dancing is -- is an expressive activity and, again, in the context of the ordinance. All I have before me now is this ordinance and the reasons for its enactment.

QUESTION: Have we said that dancing is an expressive activity in -- in -- in this context? I mean, you know, when you're talking about a -- a go-go dancer at a club or a ballet dancer at a -- at a -- at a theatrical production, yes, I can understand your saying that's expressive. But the foxtrot? I never knew that -- I mean, it -- if that's expressive activity, walking down the street is an expressive activity.

Doesn't expression convey you're trying to convey to somebody else, if not an idea, at least a feeling or something like that? You don't dance to express something to somebody else. You dance to have fun unless you're a ballet dancer or a go-go dancer, maybe a few others.

MR. SHEEHAN: Well, to answer your first question no, you haven't said that.

I'm not sure I agree with your analysis of dancing itself. If I am dancing strictly for a recreational purpose and it has its expressive elements, the fact that I don't have any particular audience does not impact the fact that it is a form of expression and it's mine.

QUESTION: Is that -- so, if I'm playing a cello in a -- in a -- in a closed room, I am -- I am engaging in expressive activity. There is nobody there.

MR. SHEEHAN: Yes. You don't have associational problems.

QUESTION: No, I don't think I have expressive problems either.

(Laughter.)

QUESTION: Maybe that's why he's playing in a closed room.

(Laughter.)

QUESTION: Some dancing looks like athletic activities too. Throw them up and throw them around.

(Laughter.)

MR. SHEEHAN: Well, that's true, Justice Marshall.

In any event, the significance, to get back to the point -- and -- and I do believe this point has been made -- that there is no constitutional right even in establishing the spectrum that Justice Brennan mentions, that the far end of that spectrum -- he does say at one end you have the compelling state interest, strict scrutiny highest standard, and at the other end you have no constitutional rights.

Justice O'Connor in the expressive association aspect in the concurring opinion establishes a similar type of scale for expressive conduct. One end of the scale would be the commercial enterprise, and the other being the surely expressive purpose of an organization.

That same type of a scale -- and if I'm understanding Justice O'Connor's opinion correctly - at the most expressive, pure expressive, end of that scale, the highest constitutional protection is accorded. Whereas at the business enterprise end of it, the commercial enterprise, if that's predominantly what's at stake, then only a rational basis is necessary to further ordinance or legislation to pass muster.

And I am saying that I believe a social association can be analyzed in that same manner. And to take the issue before us now, dance, presents the opportunity to consider what has been thought of as a cultural event and presents then the argument that a compelling state interest should be applied because it is an expressive activity. But many things can be imagined that would not fall into that category that you could not seriously argue are expressive, but you can't argue either that unless the state has some reason for denying you the right to do something, that they should be allowed to do so.

The -- one problem here is that this case presents something that's entirely different than was presented in Roberts. Roberts dealt with the traditional classical type of organization with the Jaycees. Rotary Club did the same thing. The analysis in Roberts -- Justice Brennan made the statement, our decisions have recognized two types of association, and he went on to categorize the two types. That is a completely accurate statement. There had been no previous decision that really dealt in any sense with a right of social association.

The right that we advocate in this case can be dealt with within the existing parameters of Roberts either on the intimate or on the expressive end by falling within the scale, or the Court could choose to recognize a third category that was simply not presented in Roberts and therefore isn't addressed in Roberts. And it --

QUESTION: Mr. Sheehan, could the -- could the City repeal the ordinance?

MR. SHEEHAN: Did they repeal it?

QUESTION: Could they repeal it?

MR. SHEEHAN: I'm certain they could repeal it.

QUESTION: And what happens to this constitutional right?

MR. SHEEHAN: Are you raising a question of [ILLEGIBLE WORD]?

QUESTION: No, no, no. I'm just saying your -- your client no longer -- I mean, the people would -- if you repealed the ordinance entirely, they couldn't go to any other dance halls than they go to now.

MR. SHEEHAN: Well, see, Justice Stevens, I disagree with Mr. Hopkins' comments in that respect for this reason. He has made the statement that actually the City's granting this license and having this ordinance has expanded the associational freedom of minors. To me that is a very different view of freedom than the one that I have.

If the marketplace will sustain an organization that is clean and well-guarded and well-run and does not serve alcoholic beverages and plays music so kids can come and dance, just as they can go to a roller rink or to a swimming pool, I don't think it would be constitutional for the City to come and shut them down just because there's no license or permit that has been issued.

QUESTION: Well, then you're that they they -- they could not constitutionally repeal this ordinance because this -- this provision that authorizes this kind of 14 to 18 dance halls. If they just took that out of the code, you would say that would violate the Constitution.

MR SHEEHAN: I may not be understanding your point, but what I'm saying is if the City did repeal it, I don't think that they could come in and argue that because there's no ordinance permitting 14 to 18-year olds to dance, therefore, they cannot. If there is no --

QUESTION: In another words, you see a constitutional right to operate without a license if they don't authorize dance halls without a license.

MR. SHEEHAN: Unless the City can -- can prove a rational basis for prohibiting them from operating that type of establishment, that's right.

QUESTION: Well, the rational basis is that they think there is some potential social harm from allowing 14-year olds to dance with 25-year olds.

MR. SHEEHAN: But I believe they have --

QUESTION: It's not totally irrational, is it?

MR. SHEEHAN: I believe they have to demonstrate that that is the case. There has to be some evidence. They can't simply believe that that's so and legislate in accordance with the present city council members' current beliefs. If in fact there's a rational basis, by definition it should be subject to being articulated. And there ought to be some method that somebody can be shown that here is the problem and here is the objective manifestation of the problem.

QUESTION: What about -- what about prohibiting minors from going into places that serve alcoholic liquors, nightclubs? What do they have to do? Do they have to allow it for two years so they can show a track record of -- of harm?

MR. SHEEHAN: I think that the rational basis for that type of prohibition can be established ab initio..

QUESTION: Well, I think it can here too. You need a lab test for all these things? I [ILLEGIBLE WORDS] -- the harm is self-evident. Why --

MR. SHEEHAN: Well --

QUESTION: You have to have a -- use white rats or somebody to prove it scientifically

MR. SHEEHAN: I'm afraid I find myself disagreeing with you again, Justice Scalla.

QUESTION: Well, I think so.

MR. SHEEHAN: It -- it is not to me self-evident.

Consider the fact situation. This establishment is a roller rink. There is no restriction on the age of the people who come into the roller rink. The same music is played for the dance aspect and the roller skating, the same lighting, the same security personnel, the same adult supervision, the same physical premises. There is a set of pylons on the floor. On one side of the pylons, they allow dancings; on the other side, they allow skating. On the skating side, there is no age limitation.

Now, if the problem is that older teenagers corrupt younger teenagers, there is absolutely nothing to show that that occurs only in the context of a dance and doesn't occur in the context of roller skating. And that's the record we have here.

QUESTION: (Inaudible) I don't know if that's crystal clear. Certainly dancing is thought of as a more intimate thing than -- than roller skating, isn't it?

MR. SHEEHAN: I would think of it that way.

QUESTON: And maybe the City says we just don't want 25-year olds, not older teenagers, but 25-year old dancing with 14-year olds. I think they could say that and say we don't have to extend our concerns for what happens there to roller skating.

MR. SHEEHAN: But they do have to say why they have a concern.

QUESTION: Don't you think there's some legislative -- is there a legislative finding here or not?

MR. SHEEHAN: There's nothing in the record, Justice White, that supports it at all. There's no --

QUESTION: Well, what if the ordinance started out and said we, believing that so and so? Would you say that -- that -- that a court ought to sit around and review that?

MR. SHEEHAN: I'm not sure I understand the question.

QUESTION: Well, a lot of statutes start, off and they have some findings in it or state what the purpose is. Do you think the court ought to -- shouldn't the court at least be careful to -- about disagreeing with a legislative finding about the real world?

MR. SHEEHAN: I agree that the court should be careful about challenging a legislative finding. But the problem with this particular legislative finding -- and it may be because of the -- the roller skating/dancing together in one premises that makes that particularly hard to analyze in this case.

QUESTION: Yes.

MR. SHEEHAN: But I wouldn't give it -- I wouldn't give it that great of deference. This is not what I call a self-proving statute. One does not sit down and read this statute and say, on, yes, I see. I understand such as the Minnesota self -- the statute against discrimination. Well, one can read that statute and understand immediately.

QUESTION: Well, there's a lot -- a lot of places and a lot of people who don't believe in dancing at all, don't believe in having their children dance at all with old people or young people or anybody else. And so, I -- it isn't strange that people would want to limit the opportunity for their children to dance --

MR. SHEEHAN: No, sir.

QUESTION: -- or be very careful about whom they dance with.

MR. SHEEHAN: It's not, but it's not a legislative function. That's a parental function. And the problem that you raise actually gets to the problem of cities misusing their ability to legislate for the good of the people.

There is, in fact, religious prejudice against dancing, and it's somewhat prevalent in Texas. And perhaps that's the reason we have this statute. And if it is, then it's not grounded in a concern for what's going to happen to young children dancing with older people. It is grounded in a method of advocating my religious position, that I think all dance is wrong, so I'm going to do what I can to stop it.

QUESTION: But no one here is prevented from dancing or from going to the dance hall.

MR. SHEEHAN: But they're prevented from --they --

QUESTION: Prevented from dancing with --youngsters are prevented from dancing with older people.

MR. SHEEHAN: That's -- that's right. They're prevented from choosing their associations.

QUESTION: But, Mr. Sheehan --

QUESTION: Statutory rape law does that.

MR. SHEEHAN: Yes, it does. And there's a very rational basis for it.

QUESTION: Why is that so much clearer than this?

MR. SHEEHAN: Well, a statutory rape, obviously involves something that -- well, not necessarily occurs against someone's will, but you have a --

QUESTION: By definition it doesn't occur against someone is will.

MR. SHEEHAN: You have a crime that has been committed, and --

QUESTION: Only because the legislatures have said it's a crime.

MR. SHEEHAN: Well, but the point is is that teens and older teens and adults and younger teens are free to associate with each other within certain restraints and that's one of them. They're not allowed to have sexual intercourse with someone that's not of age.

QUESTION: Well, why not say this is another one o those restraints?

MR. SHEEHAN: I don't think it has the same consequence?

QUESTION: Yes, but you earlier said there was no indication in the record of the reason for the ordinance. But as -- it's -- the lower court's opinion quotes this Ray Couch, an urban planners who explained his understanding of the purpose.

MR. SHEEHAN: Ray Couch is a -- has been with the City of Dallas for 15 years and his position is in land use planning. He is a zoning individual on the City staff. He did not articulate any reason why this statute makes any sense. He simply said that in his 15 years with experience he thinks this is a bad use of the land in -- in essence.

QUESTION: Well, the court quotes him as saying older kids, whom the ordinance prohibits from entering these dance halls, can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general, and we're concerned about mixing up these older individuals with youngster's that have not fully matured. Now, maybe he's kind of extreme. But is -- is that totally irrational?

MR. SHEEHAN: It's -- it's totally unfounded is what it is. In reading the entire record, those statements are -- are absolutely unsupported by any -- he has never even been there.

QUESTION: Well, but I don't know why one has to be there to have that concern. Maybe the concern is somewhat extreme, but -- but why do you have to go to a dance hall to have concern?

MR.SHEEHAN: I agree that you con't have to to have the concern, but you have to in order to know if the concern is real. And that's what has happened here. In fact, in Roberts it -- Justice Brennan makes the point that we are not going to -- to deal with presumptions and presume the ill-effects that you would argue will occur. In that case the Jaycees were arguing certain ill-effects, and they were unable to demonstrate them in the record. And the majority opinion said we do not make constitutional --

QUESTION: But the Jaycees were on the other side of the fence from you. The Jaycees were arguing that the law -- ordinance was unconstitutional.

MR. SHEEHAN: But the principle remains the same that you cannot take a presumption and -- a presumption from the record. If it isn't established, then it isn't there. You can't presume that, well, that's probably right. And I don't know what it takes to establish it, but I know it isn't in the record that's before this Court.

QUESTION: I assume that the logical -- the logical consequence of your position is is not only that the Class E restriction here is no good, but also that the -- the prior law before they adopted this preventing minors from going into the Class A, B or C dance halls was also bad. You can't -- you can't say dance halls, but no minors admitted. Right?

MR. SHEEHAN: I would not argue --

QUESTION: You must be 18.

MR. SHEEHAN: I would not argue under the Class A, B, C. I would not argue that a restriction that prevents minor from entering a dance hall that serves alcoholic beverages or has topless dancers is unconstitutional as applied to minors. I would argue that if the Twilight Skating Rink opened up, even in absence of having a Class E dance hall license, and they had a -- a well - fit, secure facility for the sole enjoyable recreational purpose of having dance, and the City said, no, 13 to 17-year olds cannot go in there for any reason, that that would be an unconstitutional restraint on their liberty.

QUESTION: What about eight-year olds?

MR. SHEEHAN: Same thing.

QUESTION: Same thing.

MR. SHEEHAN: We -- we --

QUESTION: Six-year olds?

MR. SHEEHAN: We have to give some recognition to the role of parents in this process. A six-year old is not -- or an eight-year old is not unsupervised. And if that parent believes that it's a fun activity and there are other children there -- there are a lot of people who believe that younger children's exposure to older children is positive, that they're positive role models and it's a beneficial relationship.

In any event, the point that -- that I -- that I want to be sure is made is that certainly some constitutional protection is -- is involved here. The difficulty in finding the appropriate category within the parameters of Roberts should not mean that this social association should not be recognized. And that's what the City is saying. It isn't expressive as -- as Roberts has defined it. It isn't intimate as Roberts has defined it. Ergo, it isn't a constitutional right.

The -- the City does have an interest in protecting their young, but they -- the statute has to have some nexus. The protection has to snow that in some means it accomplishes that.

Now, these -- there's no showing here, first of all, that this ordinance is going to accomplish anything in my opinion other than presumptions. Well, that probably isn't good that these people can be with older people. And there's no showing that the association is detrimental.

The trial court who ruled in favor of the City made these findings. The City has not articulated a precise basis for distinguishing between skating and dancing. The City's argument that the noise levels are higher, the traffic control is a problem, greater neighborhood disruption, more alcohol and drug abuse have no real factual support. Nevertheless, the trial court said, its witnesses experienced in law enforcement and urban planning insist that a distinction exists.

And it is my belief that if you rely upon that, and if that evidence is good enough, then the rational basis test is a fiction because the government can always put somebody on the stand and say I'm experienced in zoning law, and I don't think these kids should be allowed with older kids. And I can't tell you why. I just -- I just think there's a difference. And that's all we have here. And It is on that basis that the trial court ruled in favor of the City. That discards the rational basis test entirely.

In conclusion, I would like to say that it there is no rational basis for this ordinance, then it must surely be unconstitutional. If there is no reason, then the government has no basis upon which to legislate.

There is a quotation that I've noticed in several cases I've read and I'm unable to attribute it to the particular case. I think it was in a case decided by this Court in 1891 that I think is appropriate here. "The makers of our Constitution conferred as against the government the right to be let alone, the most comprehensive of rights and the right most valued by civilized man." And I believe that no less a right is at stake in this case than that right.

Thank you.

QUESTION: Thank you, Mr. Sheehan.

Mr. Hopkins, do you have rebuttal? You have 10 minutes remaining.

REBUTTAL ARGUMENT OF CRAIG LEE HOPKINS

MR. HOPKINS: Thank you, Mr. Chief Justice.

To pick up on -- on his quote about being as against the Federal Government I think is appropriate in this case because if this is expressive association, as he claims, clearly as he has just stated, the intent of the constitutional Framers was to protect their expression as against the Federal Government. And clearly they are not gathering at this dance hall to express the way they dance as opposed to the way the Federal Government might like to have them do it. I think that's the difference.

He also attacks what he claims is a lack of a good record to support the rational basis, even assuming you get to that determination. However, the testimony in the district court of his client indicates that it is not unusual or there to be unwanted sexual overtures at his establishment, this being just for your reference at pages 22 and 46 in -- in the statement of facts.

There's also testimony from his client that alcohol does slip into his establishment despite his rules against it, that there's rowdiness in his establishment despite his rules against it, and that there are drugs in his establishment despite his attempts to keep them out. I don't think there is this void in the record that he claims.

The police department -- several police officers who are charged with enforcing these types of regulations testified in the district court that on the one hand, all other things being equal, if they were called to a dance hall on a disturbance, they would expect the mood of the patrons to be much more aggressive than if they were approaching, for example, a movie theater. And the police testified that they've attributed an increase in the crime rate in certain neighborhoods to the fact that there is a dance hall in the neighborhood. So, the record --

QUESTION: Yes, but Mr. Hopkins, does that testimony show that these drugs and alcohol and sexual overtures were all by people over 18?

MR. HOPKINS: The record is -- admittedly the record is silent as to ages.

QUESTION: And I assume they wouldn't have let them in in the first place, so they must presumably have been by people under that age. And it seems to me that --

MR. HOPKINS: Well, the problem in this --

QUESTION: -- that tends to undercut your position.

Mr. HOPKINS: Well, no, because the problem in this case is that his client had both a Class B and a Class E license, and apparently was in the practice of letting in people of all ages. Whether or not that was legal at a particular time, I don't know.

QUESTION: But the record does not show, does it, that this -- these -- these practices were by older people.

MR. HOPKINS: That's correct. The record does not show that, but the record does show that the people who consulted on this issue recognized the fact that older people do have greater access to illicit drugs and alcohol.

QUESTION: They recognized the fact or they made the assumption?

MR. HOPKINS: (Inaudible).

QUESTION: See, in a lot of schools, as I understand it, people who are 16 or 17 have access to the same sort of undesirable materials.

MR. HOPKINS: I would admit that -- that people of tender years do have access, I think it's reasonable to make the statement that older people have greater access, however. Although the record is silent on the particular age of the perpetrators, I think it's reasonable to make that connection.

QUESTION: Yes, but now you're going back to assumptions where you are just going to start out and explain that the record answered these questions. I'm not sure the record does answer them. That's all I'm suggesting.

MR. HOPKINS: Well --

QUESTION: If you go back to what we all know, well, then you don't need to refer us to the record.

MR. HOPKINS: Correct. I -- I think to some degree the -- the issues of facts involved in the district court were judicially recognized. But the record was not void of a discussion of those facts and a presentation of those facts to the district court.

Respondent also makes the statement that we've singled out the dance hall as opposed to the skating that goes on in the same building. The City did not create a City v. Mr. Stanglin ordinance. We responded directly to the -- the request of the citizens solely on the issue of dance halls. The fact that he has an unusual establishment was -- was not a factor in arriving at the ordinance.

QUESTION: Does the record tell us how many of these -- what are they -- Class E dance halls are licensed in Dallas?

MR. HOPKINS: No, the record does not tell us. A recent inquiry revealed that of the 500 dance halls in the City at this point, there's only one or two licenses in effect, but no one is actually doing it because, like I say, at this point we are enjoined from enforcing that part of the ordinance. I believe at the time the suit arose, there were only one or two such dance halls in existence.

QUESTION: Well, then the combination dance hall and skating rink is characteristic of these establishments.

MR. HOPKINS: On sheer numbers, yes. I think in general the --

QUESTION: Did you say there were 500 dance halls in Dallas?

MR. HOPKINS: On a recent inquiry to the police department in charge of the licensing, he said that of all the categories, there were approximately 500 now in -- licenses in effect.

QUESTION: My. Do they do anything else in Dallas besides --

(Laughter.)

QUESTION: That's somewhat inconsistent with the notion that your religious views are so strong in that community that you don't allow any dancing

MR. HOPKINS: We allow dancing. We allow dancing of all ages and -- and we allow dancing under certain circumstances with any age person.

QUESTION: Anyway, you -- you may be moving in on -- on roller skating rinks next. You just haven't gotten around to them. Right?

MR. HOPKINS: Well, we're certainly --

QUESTION: One step at a time. We have cases that say that's okay. You don't have to --

MR. HOPKINS: We're certainly not --

QUESTION: -- eliminate all the evils at once. Right?

MR. HOPKINS: We're certainly not conceding that we have no right to move in on the skating rinks.

QUESTION: You haven't conceded much today.

(Laughter.)

MR. HOPKINS: The -- the Respondent also makes the statement that we might be infringing on a parental function. However, on these facts it's -- it's clearly not the fact because, as I mentioned earlier, it's the parents that came to us and contributed in the community meetings and said we don't want to have to go with them. We want you to create a place they car go and dance where we don't have to be with them. So, I think clearly the parents have expressed that they -- you know, they want to be able to tell their kids where they ought to be able to go, certainly. But I think on these facts, we have the opposite. They want a safe harbor for them to go and dance.

Respondent also mentioned that we are somewhere or a scale and that there should -- we should have to prove some type of rational basis because we -- we say be at one end of the scale, but we still have to prove something. But I don't agree with that. I think that although --

QUESTION: (Inaudible) the Equal Protection Clause would have some play in this case.

MR. HOPKINS: We agree that there are, you know, probably several constitutional provisions that are applicable to government actions.

QUESTION: Well, suppose equal protection. Suppose this ordinance is challenged and your -- you've classified an age group and you must at least have a rational basis for it. Don't you have to have?

MR. HOPKINS: Assuming that that's an appropriate analysis. As to the equal protection argument, I think we meet that scrutiny because they have --

QUESTION: But you would have to have -- you would have to have a rational basis at least.

MR. HOPKINS: On an equal protection challenge. However, in this case we don't have an equal protection challenge. And the First Amendment does not grant this right that they claim. And that's what they've -- they've sued under is the First Amendment.

I think the Roberts analysis is very complete and very reasonable in defining maybe not the very boundaries, but at least --

QUESTION: I thought they were -- I thought they were also relying on the other branch of Roberts, the social intimate relationship.

MR. HOPKINS: In their brief they argue --

QUESTION: Which is --

MR. HOPKINS: -- that it was intimate. I understand today that they are not arguing that it's intimate, and that if it is, it's -- it's not comparable to, as Chief Justice Rehnquist put it, the statutory rape type intimate association. I think that analogy was very appropriate because there is something that's an activity that is wholly consensual, but it's illegal strictly on the basis of age and in an attempt to protect minors. I thought -- so, I would agree with the Chief Justice's analogy there.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Hopkins.

The case is submitted.

(Whereupon, at 2:47 o'clock p.m., the case in the above-entitled matter was submitted.)