Summary
holding that a ban on all topless dancing in premises licensed to sell liquor is unconstitutional under the state constitution because the New York Constitution does not contain a provision "modifying the State guarantee of freedom of expression corresponding to . . . the diminishing effect of the Twenty-first Amendment with respect to the Federal guarantee of freedom of expression"
Summary of this case from American Bush v. City of South Salt LakeOpinion
Argued October 15, 1981
Decided November 23, 1981
Appeal from the Supreme Court, JOHN H. DOERR, J.
Robert Abrams, Attorney-General (Peter J. Dooley and Jeremiah Jochnowitz of counsel), for appellants.
George P. Doyle for respondents. Jay M. Zerin for Association of Adult Entertainment Taverns, amicus curiae.
The guarantee of freedom of expression declared in our State Constitution mandates invalidation of the blanket proscription against all topless dancing in premises licensed by the State Liquor Authority presently stated in subdivision 6-a of section 106 of the Alcoholic Beverage Control Law. Although that statutory ban has been held to be valid under the Federal Constitution in consequence of the provisions of its Twenty-first Amendment, it is invalid under the guarantee of freedom of expression of our State Constitution, as to which the Twenty-first Amendment has no application.
This case is now before us on remand from the Supreme Court of the United States ( 452 U.S. 714). On our prior consideration a majority in our court held that subdivision 6-a of section 106 of the Alcoholic Beverage Control Law was unconstitutional under the First Amendment of the United States Constitution insofar as it prohibits topless dancing at premises licensed by the State Liquor Authority ( 50 N.Y.2d 524, rearg and amdt of remittitur den 51 N.Y.2d 879). On that occasion we found it unnecessary to consider the parallel contention that the statute was unconstitutional under section 8 of article I of our State Constitution ( 50 N.Y.2d 524, 528, n 5, supra).
Subdivision 6-a (added by L 1977, ch 321) provides: "No retail licensee for on-premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof."
The rationale of the majority then was that the Supreme Court had recognized dancing as a form of expression and had held that topless dancing, like nudity in art and sculpture, was to be accorded at least limited protection under the First Amendment (Doran v Salem Inn, 422 U.S. 922). We explicitly took note of what we considered a critical circumstance in the case, namely, that the statutory provision under scrutiny barred all topless dancing — "The only question before us is whether the statute is constitutional to the extent that it absolutely prohibits liquor licensees from presenting nonobscene topless dancing performances to willing customers under all circumstances" ( 50 N.Y.2d 524, 529, supra). We then recognized, as we do now, the right of the Legislature or the State Liquor Authority without infringement of the constitutional prescriptions to prohibit or to regulate topless dancing on either of two bases. If the dancing is itself found to be obscene there can be no question but what it falls outside the shelter of any constitutional right of expression. Or, topless dancing although not obscene may be regulated, even to the extent of its prohibition, in circumstances so functionally related to the exercise of the State's authority to regulate the sale and consumption of alcoholic beverages as to overcome the applicable constitutional guarantee of freedom of expression, as for instance, by a rule, such as that of the State Liquor Authority in effect prior to the legislative enactment of subdivision 6-a, prohibiting topless dancing performed on a stage or platform less than 18 inches above the immediate floor level or removed by less than 6 feet from the nearest patron (9 N.Y.CRR 53.1[s] prior to its amendment).
Prior to its amendment effective August 31, 1977 (the same date chapter 321 of the Laws of 1977 became effective), section 53.1 of the rules of the authority provided in pertinent part:
"Any license or permit issued pursuant to the Alcoholic Beverage Control Law may be revoked, cancelled or suspended for the following causes:
* * *
"(s) for suffering or permitting any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof. The provisions of this subdivision shall not apply to any female entertainer performing on a stage or platform which is at least 18 inches above the immediate floor level and which is removed by at least six feet from the nearest patron."
Effective August 31, 1977 subdivision (s) was amended to read: "For suffering or permitting any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof." In its original form subdivision (s) conformed to the provisions of rule 143.3 of the California Department of Alcoholic Beverage Control as to which no claim of unconstitutionality was raised in California v La Rue ( 409 U.S. 109, 112, n 2) and which provided in its subdivision (2): "Subject to the provisions of Subdivision (1) hereof, entertainers whose breasts and/or buttocks are exposed to view shall perform only when a stage is at least 18 inches above the immediate floor level and removed at least six feet from the nearest patron."
The determinative infirmity in the enactment of subdivision 6-a by the Legislature was the total absence of any findings by the Legislature or by the State Liquor Authority to support a rationally based factual justification for the blanket prohibition. Chapter 321 of the Laws of 1977 was predicated on no legislative finding and it included no declaration of legislative intent. It was merely a straightforward, unembellished amendment of section 106 to add a new subdivision. Nor was the amending bill introduced by the State Liquor Authority or accompanied by any memorandum from the authority in support of its enactment. Presumably the authority had been content with the adequacy, for purposes of the discharge of its supervisory responsibility, of its own existing 18-inch 6-foot rule.
To the extent that the Per Curiam opinion in the Supreme Court may be read as concluding that such findings did exist in this case we cannot agree. It is true, as recited in that opinion, that the memorandum of the Assemblyman who introduced the bill, as was to be expected, contained a statement of his objective in introducing his bill. Although his memorandum might perhaps be classified as part of the legislative history, and thus possibly available to assist in the interpretation of this statute were it ambiguous, there is nothing to suggest that it was adopted by the Legislature or otherwise converted into legislative findings as a premise for enactment of the statute. Nor have we found any other document which may be classified as containing findings or a declaration of purpose by the Legislature.
The dissenters in our court expressed the view, corresponding to that of the majority in the Supreme Court, that even if it were to be concluded that subdivision 6-a would otherwise be unconstitutional under the First Amendment its enactment by the State would be authorized under the provisions of the Twenty-first Amendment of the Federal Constitution.
As the dissenters recognized, "It is, of course, far too late in the day to suggest that dancing, even topless or nude dancing, is entitled to absolutely no First Amendment protections." ( 50 N.Y.2d 524, 532, supra.)
The Supreme Court expressly upheld the validity of subdivision 6-a against attack under the Federal Constitution on the ground that its adoption was permitted under the provisions of the Twenty-first Amendment. "This Court has long recognized that a State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. * * * It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold * * * Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs * * * Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment." ( 452 U.S. 714, ___, 49 USLW 3950, 3951, supra.)
The posture in which we confront this case on remand can thus be summarized as follows. When the case was previously before us the majority held subdivision 6-a unconstitutional as violative of the First Amendment of the United States Constitution; the dissenters would have held that in view of the authority granted the States by the Twenty-first Amendment to regulate the sale and use of liquor, the provision of subdivision 6-a was not irrational and accordingly should be upheld. The Supreme Court similarly upheld subdivision 6-a against challenge under the Federal Constitution on the ground that the broad provisions of the Twenty-first Amendment substantially curtailed the operative scope of the First Amendment. Nothing in its opinion intimates, however, that it would have upheld the subdivision against First Amendment challenge had there been no Twenty-first Amendment.
We are, of course, bound by the decision of the Supreme Court as to the validity of subdivision 6-a under the provisions of the Federal Constitution. We are now called on to consider the validity of the subdivision under the provisions of our State Constitution, an issue which we did not address when the case was before us on the prior occasion and which, of course, was not within the scope of the Supreme Court's review.
We perceive no reason to depart from our conclusion, reached before, that subdivision 6-a in its present form is violative of a constitutional guarantee of freedom of expression. In arriving at this result we have no occasion to consider whether our State constitutional guarantee is broader than the guarantee of the Federal Constitution. For present purposes it suffices to observe that, at the very least, the guarantee of freedom of expression set forth in our State Constitution is of no lesser vitality than that set forth in the Federal Constitution (considered without reference to the curtailing effect of its Twenty-first Amendment). Our State Constitution contains no provision modifying the State guarantee of freedom of expression corresponding to what the Supreme Court has held is the diminishing effect of the Twenty-first Amendment with respect to the Federal guarantee of freedom of expression. We therefore hold that subdivision 6-a is unconstitutional under the provisions of our State Constitution.
First Amendment of the United States Constitution:
"Freedom of religion, speech and press; peaceful assemblage; petition of grievances
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Section 8 of article I, of the New York State Constitution: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact."
Nor is there anything in the Twenty-first Amendment itself which inhibits or modifies the right of freedom of expression assured by our State Constitution. As read by the Supreme Court, the Twenty-first Amendment recognizes, so far as the restrictive provisions of the Federal Constitution are concerned, the absolute power of a State to prohibit totally, and consequently to regulate, the sale of alcoholic beverages. Appellants do not assert, however, that the source of the State's authority to regulate the sale and consumption of alcoholic beverages is to be found in the Twenty-first Amendment. Contrary to the position now advanced by one of the dissenters, the authority of our State in this respect stems not from any grant to be found in the Federal Constitution but derives from the inherent police power of the State as a sovereign (see 9 N.Y. Jur, Constitutional Law, § 143; US Const, 10th Amdt). The exercise of the police power by the State Legislature is necessarily subject to the strictures of our State Constitution, of which the guarantee of freedom of expression found in section 8 of article I is controlling in this instance. The Supreme Court has never espoused the proposition that the Twenty-first Amendment of the Federal Constitution confers a power on the States which is superior to or free from the constraints of their own Constitutions, and nothing cited by the dissenters is to the contrary.
The quotation from Seagram Sons v Hostetter ( 16 N.Y.2d 47, 56), cited in the dissent, relied for its authority on Mahoney v Triner Corp. ( 304 U.S. 401). That case, however, stands only for the proposition that (p 404) "[i]ndependently of the Twenty-first Amendment, the State had power to [regulate the sale of intoxicating liquors]" and that since the adoption of the Twenty-first Amendment the State's exercise of that power is not subject to attack on grounds of denial of equal protection under the Fourteenth Amendment of the Federal Constitution — in effect a holding with respect to the interplay between the Fourteenth and Twenty-first Amendments of the Federal Constitution paralleling that of the Supreme Court in this case with respect to the interplay between the First and Twenty-first Amendments of the Federal Constitution.
The statement found at the conclusion of the Per Curiam opinion in the Supreme Court, that "the Twenty-first Amendment makes [the prohibition of topless dancing] a policy judgment for the state legislature, not the courts" ( 452 U.S. 714, ___, 49 USLW 3950, 3951, supra), is incomplete; any policy judgment made by our Legislature must necessarily conform to the commands of our State Constitution.
Accordingly, we hold that the present statutory ban against topless dancing in premises licensed by the State Liquor Authority is prohibited by the guarantee of freedom of expression declared in section 8 of article I, there being no legislative findings or declaration in this instance providing warrant for the judicial conclusion that the categorical ban is sufficiently functionally related to the exercise of the State's police power in the discharge of the responsibilities vested in the State Liquor Authority.
In Matter of Beal Props. v State Liq. Auth. ( 37 N.Y.2d 861, 862) we held that the State Liquor Authority did not have authority to impose a sanction against nude dancing "absent a regulation by the agency giving notice that conduct not lewd or indecent per se was proscribed". That decision may not properly be read as implying that just any regulation, regardless of its constitutional validity, would serve to confer such authority. What the agency adopted following our decision in that case was the presently unchallenged 6-foot 18-inch regulation referred to (supra, at p 232).
We do not now undertake to define the standard to be applied under our State Constitution to determine whether a particular regulation of speech or conduct in connection with the sale or consumption of alcoholic beverages violates the guarantee of freedom of expression declared in section 8 of article I. It would seem that the test would be higher than that of mere rational relationship, the standard required for the justification of any exercise of the police power quite independent of the provision of section 8 of article I. Presumably, too, the standard would be significantly different depending on the nature of the speech or conduct to be regulated, e.g., as between topless dancing, on the one hand, and political activity, on the other, assuming indeed that the latter would be subject to any such regulation.
For the reasons stated, the judgment of Supreme Court should be affirmed, with costs.
Because Judge JONES' analysis of the controlling constitutional and procedural issues — with all of which I agree — does not focus on the practical nature of the imposition on freedom of expression which we strike down anew today, I add this additional comment for myself:
Licensed liquor establishments, regardless of whether they provide nonobscene topless dancing entertainment, may not dispense alcoholic beverages to minors (Alcoholic Beverage Control Law, § 65).
As to adults, such performances are not thrust upon the patrons. Those who, understandably, do not choose to attend, should be, and are, perfectly free to stay away, and, presumably, they exercise that right. Our profound commitment to personal liberty demands not only that we respect their right to do so, but, correlatively, that we evince like respect for the right of adults who elect to attend. In a free society, one such right could not long exist without the other.
The protection of both is implicit in section 8 of article I of our State Constitution. Its guarantee is not confined to the expression of ideas that are conventional or those shared by a majority.
I am again impelled to dissent from the majority's holding that the Legislature has no power to proscribe female topless dancing in an establishment which is licensed by the State Liquor Authority to dispense alcoholic beverages for on-premises consumption.
When the appeal was previously before this court, the majority declared the statutory ban on topless dancing in licensed establishments unconstitutional, as a consequence of the statute's impermissible infringement on the Federal Constitution's guarantee of the freedom of expression (US Const, 1st Amdt). The majority there declared that the State had not justified its attempt to regulate the mixture of topless dancing and alcohol. In so doing, our court failed to appreciate the broad power given the State by the Twenty-first Amendment to regulate the sale of liquor within its boundaries (Bellanca v New York State Liq. Auth., 50 N.Y.2d 524). Having been reversed by the United States Supreme Court on this point directly (New York State Liq. Auth. v Bellanca, 452 U.S. 714), the majority now turns to our State Constitution to reach the same result. I cannot agree.
In its reliance on the State Constitution (NY Const, art I, § 8), the majority, for the first time, holds legislative activity to be unlawful on the basis of its infringement on the freedom of expression, notwithstanding the fact that the United States Supreme Court has clearly and expressly declared that the statute is within the ambit of State legislative power. The basis for the present holding by the same Judges who comprised the majority whose decision, as noted, was reversed by the Supreme Court, is that our State Constitution, whose guarantee of freedom of expression is worded in the same terms as the Federal guarantee, nevertheless does not contain a counterpart of the Twenty-first Amendment. Thus, it is intimated, in the absence of such a proclamation in our Constitution, the State is forbidden the power to regulate the sale of liquor, where that regulation impairs, in any way, some form of the freedom of expression.
It must be conceded, and indeed the majority does not controvert or deny, that the provisions of the State and Federal Constitutions do not differ in any significant respect.
I do not quarrel with the use of our State Constitution to afford broader guarantees to individuals than those granted by the Federal Constitution. Indeed, in a proper case, we have full authority to construe our own Constitution to provide such greater protections. I do not agree, however, with the development of a separate jurisprudence relative to the right of freedom of speech, in the absence of a legally compelling reason for doing so. I am entirely unpersuaded by the rationale of the majority, predicated as it is on the absence of the equivalent of a Twenty-first Amendment in our State Constitution. The Supreme Court has flatly and squarely held that the "State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries * * * It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold" (New York State Liq. Auth. v Bellanca, 452 U.S. 714, ___, 101 S Ct 2599, 2600, supra). To now require, as a precondition to the exercise of such power in a manner expressly condoned by the highest court of this Nation, that the State must enact its own counterpart of the Twenty-first Amendment, is without reason or authority.
Even assuming, arguendo, the propriety of proceeding unhampered by the permissive scope of the Twenty-first Amendment, I have further disagreement with the majority's holding. As the Supreme Court has noted, "the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression" (Doran v Salem Inn, 422 U.S. 922, 932). Indeed, our own court, on the prior appeal in this very case, recognized that this form of activity is entitled to only "some constitutional protection" (Bellanca v New York State Liq. Auth., 50 N.Y.2d 524, 531, supra [emphasis added]). The court there also noted that the State must demonstrate a rational connection between the activity to be prohibited and the State's "legitimate concern in controlling liquor consumption". Of course, our function is limited to making certain that a rational connection exists.
The court emphasized this pronouncement on the level of justification that must be offered by the State in the following statement: "Of course when the State seeks to prohibit more traditional forms of expression, it must make a more compelling showing of need for the restriction. For instance, it would be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide" (Bellanca v New York State Liq. Auth., 50 N.Y.2d 524, 531, n 7).
Thus, it appears conclusively that the State need only advance a rational justification for its prohibition on topless dancing in the circumstances presented here. Without question, I believe it has done so. In this connection, I note the legislative support memorandum accompanying the challenged amendment to section 106 of the Alcoholic Beverage Control Law:
"Nudity is the kind of conduct that is a proper subject for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing. It has long been held that sexual acts and performances may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law. What soberness and dress conceal, drunkenness and nudity reveal. Freedom, undisciplined by a sense of responsibility in its use, can produce chaos.
"Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will once and for all, outlaw conduct which is now quite out of hand."
This memorandum was quoted with approval by the United States Supreme Court, in support of its view that even if explicit legislative findings were required to uphold the ban on topless dancing, they exist in this case. The majority proclaims, without citation of authority or good reason, that these statements are not sufficient. Thus, the majority would apparently deprive the Legislature of the power to use its "common sense", as it professed to do in its support memorandum. It is concluded that this memorandum was not adopted by the Legislature, nor, it is said, is there any declaration of legislative intent. Contrary to this conclusion, it is noteworthy that the memorandum is reprinted in the 1977 New York State Legislative Annual (at p 150), whose prefatory remark states: "The Legislative Annual compiles primary source material on New York State legislation for the 1976 regular and extraordinary sessions. By annotating each bill enacted into law with its most pertinent memoranda, which were prepared by the agencies or individuals initiating or recommending particular legislation, the Annual provides contemporaneous documentation of legislative intent". I think it can safely be concluded that the Legislature was aware of its sponsoring member's memorandum. In the absence of any indications to the contrary, we can also properly conclude that it adopted that rationale in approving the legislation itself.
Thus, the Legislature has made clear the basis for its proscription of topless dancing on licensed premises. It has determined that nudity coupled with the public consumption of alcohol "begets undesirable behavior". Surely the Legislature is in a better position to make that determination than is this court. The majority of this court nevertheless concludes that this finding is insufficient. I am at a loss to discern what type of finding would be required before what is essentially a "'time, place and manner'" restriction on a nonobscene display of the human anatomy (see Young v American Mini Theatres, 427 U.S. 50, 58, and analysis thereof; Nowak, Rotunda Young, Constitutional Law, at pp 845-846; cf. FCC v Pacifica Foundation, 438 U.S. 726) will be permitted by this court. I can only wonder what findings this court would now require if faced with the question of when the Legislature can properly prohibit topless dancing on our public streets, or indeed, on the steps of our own courthouse. The fallacy in the majority's analysis rests in the imposition on the State Legislature of a high and specific threshold of findings concerning a right which is concededly entitled to only the "barest minimum" of constitutional protection.
I do not, of course, ascribe to the majority's holding the view that legislation prohibiting such conduct is unconstitutional (see Penal Law, § 245.00, 245.01, 245.02). However, inasmuch as such legislation is apparently based on the State's interest in preventing indecent conduct in public and on the necessity of avoiding public disturbance, my difficulty rests merely with the character of legislative findings that would be required before such proscriptions will be found valid.
The majority expresses concern that the State Liquor Authority neither introduced the amendment in question nor submitted a memorandum in support of its enactment. Thus, they conclude that the authority must have been content with its prior rules regulating topless appearances in licensed premises. In this connection, I note the memorandum to the Governor from the chairman of the State Liquor Authority, which, although received after action by the Governor, recommended approval of the amendment prohibiting nudity in licensed premises. This memorandum states: "Sponsors of the bill argue that there is an ever growing proliferation of topless dancing and go-go establishments, many of which are now creeping into residential areas and operating within short distances of churches and schools. Some of these establishments are being located in areas which are undergoing severe transition and their presence acts as an additional irritant and causes homeowners to move to other communities. The bill would help to combat the pernicious effect of sex oriented businesses." Thus, it is clear that the majority's concern over the State Liquor Authority's position (or claimed lack thereof) on topless barroom dancing is unfounded. Moreover, the authority's position is really irrelevant to our determination in this case. We are to be concerned only with the Legislature's findings and actions, and not those of its agency. Frankly, the majority's holding demonstrates complete disregard for the action taken by the legislative branch of government with respect to a societal problem particularly within the sphere of authority consigned to its judgment.
As if the Supreme Court's ruling in Bellanca were not enough, our own court set forth the charter by which the Legislature could act. In Matter of Beal Props. v State Liq. Auth. ( 37 N.Y.2d 861), we concluded on the rationale of the dissenting opinion below ( 45 A.D.2d 906 [COOKE, J.]), that the State Liquor Authority could not impose a sanction for nude dancing in a bar, inasmuch as that conduct, not lewd or indecent per se, had not been specifically proscribed by either statute or regulation ( 45 A.D.2d 906, 908, supra). The inescapable implication of the holding in that case is that once such a statute or regulation were adopted, the State Liquor Authority could properly prohibit nude dancing on licensed premises. The statute in question is nothing more than an effort to follow our direction that before such nonobscene conduct may be prohibited, it must be adequately detailed via statute or regulation so as to give notice to those who must abide by its dictates. I see no difference of constitutional magnitude between totally nude barroom dancing, which the court would apparently allow the Legislature to prohibit, and topless barroom dancing, which, according to the majority of this court, apparently the Legislature may not prohibit. I believe the Legislature acted properly, lawfully and constitutionally. Nonetheless, the majority has determined to go its own way and repudiate our own rationale in Beal. I dissent because I think the majority is wrong in so obdurately rejecting the direction of our prior precedent.
In conclusion, I stress, as I did in my previous dissent, that as Judges we are not to shut our eyes to reality: "No reasonable person, moralist or not, could deny that the admixture of alcohol and topless dancing presents a very real possibility of disturbances of the public peace in licensed premises, a problem which may be addressed in advance by the Legislature. The elected representatives of the people of this State have now chosen to avoid such disturbances by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Although some may believe this solution to be unwise or unnecessary, there exists no justification for disturbing the legislative judgment in this case" (Bellanca v New York State Liq. Auth., 50 N.Y.2d 524, 534, supra).
Accordingly, I dissent and vote to uphold the constitutionality of subdivision 6-a of section 106 of the Alcoholic Beverage Control Law.
I agree completely with the views expressed in the dissenting opinion of Judge GABRIELLI. There is, however, an additional and more fundamental reason that compels me to dissent in this case. In holding that subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is violative of the right to freedom of expression guaranteed by section 8 of article I of our State Constitution, the majority, in my view, misconceives the effect of the Twenty-first Amendment in terms of conferring a right upon this State, independent of the normal police power, to regulate the sale of liquor.
According to the majority, the Twenty-first Amendment has "no application" to our State Constitution. In their view, a State's right to regulate the sale of alcoholic beverages is derived solely from the police power. Pursuant to this line of reasoning, the majority is able to formulate a rather neat and seemingly logical argument, to wit: because our State Constitution contains no equivalent to the Twenty-first Amendment that counterbalances the right to free expression guaranteed by section 8 of article I, sub-division 6-a of section 106 of the Alcoholic Beverage Control Law is invalid. I cannot agree.
Contrary to the majority's view, when a State acts to regulate the sale of liquor within its boundaries, its authority stems from both its general police power and directly from the Twenty-first Amendment to the United States Constitution. Indeed, rather than merely restoring to the States their pre-existing police power over the sale of alcoholic beverages by repealing the Eighteenth Amendment, the second section of the Twenty-first Amendment expressly reserves to the States a power to regulate traffic in liquor: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Thus, although the States "require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare and morals." (California v La Rue, 409 U.S. 109, 114.) This independent right to regulate the sale of liquor under the Federal Constitution has been interpreted by the Supreme Court as not only creating an exception to the commerce clause (e.g., Seagram Sons, v Hostetter, 384 U.S. 35, 41-42; Ziffrin, Inc. v Reeves, 308 U.S. 132; State Bd. v Young's Market Co., 299 U.S. 59), but, more recently, as qualifying rights guaranteed by the First Amendment as well — at least insofar as certain forms of nude and partially nude entertainment are concerned. (New York State Liq. Auth. v Bellanca, 452 U.S. 714; California v La Rue, supra.) Perhaps the most persuasive support for the proposition that the Twenty-first Amendment confers upon the States a right to control the sale of alcoholic beverages independent of the normal police power may be found in the contrary remarks of one of the dissenting Justices in this very case. (See New York State Liq. Auth. v Bellanca supra, at pp 718, ___, pp 2604-2605 [STEVENS, J., dissenting]; cf. Craig v Boren, 429 U.S. 190, 204-208; Wisconsin v Constantineau, 400 U.S. 433; see, generally, Note, Effect of the Twenty-first Amendment on State Authority to Control Intoxicating Liquors, 75 Col L Rev 1578.)
Lest there be any further doubt on the subject, this court, on a prior occasion, has made clear that, notwithstanding a restoration of the normal police power, "the Twenty-first Amendment spells out an additional specific and federally protected right of each State to eliminate as well as regulate the liquor traffic within its borders." (Seagram Sons v Hostetter, 16 N.Y.2d 47, 56, affd 384 U.S. 35, supra [emphasis supplied].) Given the undisputed existence of this State's right under the Federal Constitution to regulate the sale of liquor, it is difficult to understand the majority's view, unsupported by the citation of any authority, that the Twenty-first Amendment has "no application" to our State Constitution. This Federally recognized power on the part of the States to control the commercial distribution of alcoholic beverages within their respective boundaries does not exist in a vacuum; nor is it limited to the confines of the Federal Constitution. The power conferred by the Twenty-first Amendment simply does not evaporate once the analysis shifts to a determination of the right to free expression under our State Constitution. Rather, this independent, Federal right to control the traffic in liquor subsists, and, pursuant to the supremacy clause, must be given full recognition and effect — even when considering the provisions of our own Constitution.
The supremacy clause (US Const, art VI) provides in relevant part: "This Constitution * * * shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (Emphasis supplied.)
Placed in this perspective, a proper resolution of the issue presented as a result of the Supreme Court's remand to us requires that the right to freedom of expression guaranteed by section 8 of article I of our State Constitution be weighed against the State's right to regulate the sale of alcoholic beverages. In this regard, subdivision 6-a of section 106 of the Alcoholic Beverage Control Law must be viewed as an exercise of both the police power and this State's independent right under the Twenty-first Amendment to control the sale of liquor within its boundaries. However, as I read the majority's opinion in this case, the right to freedom of expression guaranteed by our State Constitution is coextensive with the First Amendment right to free speech. (At pp 234-235.) If this be so, then, in view of the Supreme Court's determination in this case that the State's right to ban the sale of liquor supercedes the protection afforded by the First Amendment, our State constitutional guarantee of freedom of expression must also give way to the Twenty-first Amendment. Therefore, the constitutionality of subdivision 6-a of section 106 of the Alcoholic Beverage Control Law should be sustained.
Of course, this court can recognize a right to freedom of expression under our State Constitution which is broader than the rights conferred under the First Amendment. (Cf. People v Elwell, 50 N.Y.2d 231; Cooper v Morin, 49 N.Y.2d 69; Sharrock v Dell Buick-Cadillac, 45 N.Y.2d 152; People v Isaacson, 44 N.Y.2d 511; People v Hobson, 39 N.Y.2d 479.) In my view, however, this would be most unfortunate. There is no significant difference between the language of the First Amendment and of section 8 of article I of the New York Constitution. Nor is any compelling reason offered to justify such an expansion of the State right to freedom of expression. Finally, such a holding would require that we deviate, for the first time, from the Supreme Court's interpretation of constitutionally protected rights in this area.
In any event, the majority has declined to recognize any such broader right to freedom of expression under our State Constitution. In fact, the court continues to adhere to the principle that the guarantees of section 8 of article I are coextensive with the rights secured under the First Amendment. Instead, the majority, in the guise of effectuating our State constitutional right to freedom of expression, has struck down subdivision 6-a of section 106 of the Alcoholic Beverage Control Law simply by ignoring this State's independent right under the Federal Constitution to regulate the sale of liquor. As noted earlier, I have grave misgivings as to whether such a complete failure to recognize the effect of the Twenty-first Amendment upon our State Constitution accords with the mandate of the supremacy clause.
Finally, it should be noted that subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is not an across-the-board prohibition on topless dancing. Rather, the statute only bans topless dancing in establishments where liquor is sold for on-premises consumption. This fact, when coupled with a recognition that such forms of entertainment "involve only the barest minimum of protected expression" (Doran v Salem Inn, 422 U.S. 922, 932; accord California v La Rue, supra, at pp 117-118), causes plaintiffs' claim of unconstitutionality to be placed in serious doubt. In my view, subdivision 6-a of section 106 of the Alcoholic Beverage Control Law is a rational exercise of both the police power and this State's independent right under the Twenty-first Amendment to regulate the sale of liquor. Although some may question the wisdom behind a statute which prohibits the mixing of alcohol and nude dancing, in the words of the Supreme Court, "the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts." (New York State Liq. Auth. v Bellanca, supra, at p ___, p 2602.)
For all these reasons, I would reverse the judgment of Supreme Court and uphold the constitutionality of subdivision 6-a of section 106 of the Alcoholic Beverage Control Law.
Judges WACHTLER, FUCHSBERG and MEYER concur with Judge JONES; Judge FUCHSBERG concurs in a separate opinion; Judge GABRIELLI dissents and votes to reverse in an opinion in which Chief Judge COOKE and Judge JASEN concur; Judge JASEN dissents in a separate dissenting opinion.
On reargument, following remand by the United States Supreme Court, judgment affirmed, with costs.