Cert Petition in Georgia Grownup-Leisure Tax Case: Half 2

See additionally Volokh, supra, at 651-56.

B. The Secondary Results Doctrine Is a Restricted Exception to This Rule.

However what in regards to the “secondary results” doctrine? In Metropolis of Renton, a zoning ordinance discriminated towards grownup film theaters. This was, on its face, content material discriminatory. And but, the U.S. Supreme Court docket wrote, the ordinance was “aimed not on the content material . . . however reasonably on the secondary results of such theaters on the encompassing neighborhood,” 475 U.S. at 47, and was subsequently correctly examined underneath the extra lenient normal relevant to time, place, and method rules, i.e., intermediate scrutiny, id. at 49-50.

Metropolis of Renton‘s secondary results doctrine isn’t an remoted phenomenon. This Court docket relied on the identical content-neutral justification rule to uphold an abortion-clinic buffer zone in Hill, 530 U.S. at 719 (citing Ward, 491 U.S. at 791 (citing Metropolis of Renton, 475 U.S. at 47-48)), and in varied different circumstances listed in Half B.1 infra. The theme operating via these circumstances, from grownup leisure to abortion-clinic buffer zones, is that even a facially content-discriminatory enactment may be handled as if it have been content material impartial—and evaluated underneath intermediate scrutiny—whether it is justified regardless of content material.

The Metropolis of Renton/Hill doctrine—the content-neutral justification rule, of which the secondary results doctrine is one instance—is an exception to the overall rule said above. The area of this doctrine is unclear; however regardless of the exact boundaries of the doctrine, it has at all times been a restricted exception.

1. The Correct Scope of Metropolis of Renton Stays Unclear.

It has lengthy been clear that the Reed and Metropolis of Renton doctrines are inconsistent, or not less than in substantial rigidity, with one another. Students have repeatedly famous this. See, e.g., Genevieve Lakier, Reed v. City of Gilbert, Arizona, and the Rise of the Anticlassificatory First Modification, 2016 Sup. Ct. Rev. 233, 293; Leslie Gielow Jacobs, Making Sense of Secondary Results Evaluation After Reed v. Gilbert, 57 Santa Clara L. Rev. 385, 388-89 (2017); Anthony Lauriello, Panhandling Regulation After Reed v. City of Gilbert, 116 Colum. L. Rev. 1105, 1140-41 (2016). So have lower-court judges. See Free Speech Coalition, Inc. v. Legal professional Basic, 825 F.3d 149, 174 (3d Cir. 2016) (Rendell, J., dissenting) (“The secondary results doctrine thus appears logically irreconcilable with Reed.”).

Some courts have assumed that Metropolis of Renton continues to be good regulation after Reed. See, e.g., BBL, Inc. v. Metropolis of Angola, 809 F.3d 317, 326 n.1 (seventh Cir. 2015); Maxim Cabaret, Inc. v. Metropolis of Sandy Springs, 816 S.E.2nd 31, 36 n.4 (Ga. 2018); Flanigan’s Enters., Inc. of Ga. v. Metropolis of Sandy Springs, 703 F. App’x 929, 934–35 (eleventh Cir. 2017); Jacobs, supra, at 414-16. Different courts have determined that not less than a few of their prior case regulation—which had relied on Metropolis of Renton‘s content-neutral justification rule—needed to be revisited in mild of Reed. See, e.g., Free Speech Coalition, 825 F.3d at 161 n.9; Cahaly v. Larosa, 796 F.3d 399, 404-05 (4th Cir. 2015); Reagan Nat’l Advert. of Austin, Inc. v. Metropolis of Austin, 972 F.3d 696, 702-03 (fifth Cir. 2020), rev’d on different grounds, 596 U.S. 61, 69 (2022); Int’l Out of doors, Inc. v. Metropolis of Troy, 974 F.3d 690, 706 (sixth Cir. 2020).

However even when a decrease court docket acknowledges that Metropolis of Renton has not been overruled and should subsequently be utilized inside its correct area, it’s arduous to inform when to use Reed and when to use Metropolis of Renton. The boundary between the Reed and Metropolis of Renton domains is unclear.

Metropolis of Renton doesn’t apply each time a authorities identifies some secondary impact: that a lot is clear from circumstances like Simon & Schuster, Humanitarian Legislation Venture, and Arkansas Writers’ Venture, in all of which the federal government was pursuing some aim unrelated to speech. Certainly, making use of it this fashion would considerably unravel the Reed doctrine: as Justice Brennan famous in Boos, the Metropolis of Renton evaluation “creates a attainable avenue for governmental censorship at any time when censors can concoct ‘secondary’ rationalizations for regulating the content material of political speech.” 485 U.S. at 335 (Brennan, J., dissenting).

Neither is the area of Metropolis of Renton coterminous with grownup leisure. First, Metropolis of Renton doesn’t at all times apply when grownup leisure or pornography is at challenge. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (involving digital baby pornography). And second, Metropolis of Renton has been utilized even past the grownup leisure context:

• In Boos, a plurality distinguished Metropolis of Renton (thus assuming that it will in any other case apply) in analyzing a D.C. ordinance barring some types of protest outdoors embassies, 485 U.S. at 320-21 (plurality opinion).
• In Metropolis of Cincinnati, 507 U.S. at 430, a majority likewise distinguished Metropolis of Renton in analyzing a metropolis’s coverage towards newsracks for business handbills.
• This Court docket cited Metropolis of Renton positively in R.A.V., 505 U.S. at 389, a case involving the show of symbols that arouse anger primarily based on components corresponding to race.
• In Ward, 491 U.S. at 791, this Court docket relied on Metropolis of Renton to uphold the constitutionality of sound-amplification pointers for a live performance in a park.
• And in Hill, 530 U.S. at 719, this Court docket relied on the content-neutral justification precept, citing Ward, to uphold an abortion-clinic buffer zone.

In a few of these circumstances, the exact doctrinal assertion has not made a distinction (the regulation in Ward, as an illustration, would have been content material impartial underneath any normal), however in different circumstances (corresponding to Hill), the reliance on the content-neutral justification principle made an actual distinction to the underside line. Some decrease courts have mistakenly mentioned that this Court docket has solely ever utilized Metropolis of Renton within the context of “rules affecting bodily purveyors of grownup sexually specific content material,” see Free Speech Coalition, 825 F.3d at 161, however that is incorrect: sadly, Metropolis of Renton‘s area resists any straightforward characterization.

2. On the Very Least, Metropolis of Renton Does Not Apply to Taxation.

Whereas this Court docket has by no means defined the exact scope of Metropolis of Renton secondary results evaluation, there are some guideposts. This Court docket has at all times utilized the doctrine in a regulatory context, particularly when conventional zoning or land-use concerns are at challenge—when the regulation can pretty be characterised as a “time, place, or method regulation.” (Thus, Metropolis of Austin, the place this Court docket characterised the “on-/off-premises distinction” as being “just like unusual time, place, or method restrictions,” 596 U.S. at 71, additionally arose in a land-use regulation context, i.e., signal codes.) This Court docket has by no means utilized the Metropolis of Renton strategy to taxes—and, in truth, Arkansas Writers’ Venture is an efficient instance of the opposite, the place this Court docket utilized strict scrutiny to a content-discriminatory tax though the federal government had asserted a content-neutral rationale. See Half A.3 supra.

It is smart that the secondary results doctrine is proscribed to, at most, regulation and licensing—however doesn’t prolong to taxation—for the next 5 causes.

First, from its beginnings in Younger v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the secondary results doctrine has been intently tied to zoning and land use. The plurality in that case upheld a zoning ordinance focusing on grownup theaters primarily based on “town’s curiosity in preserving the character of its neighborhoods,” id. at 71; “[i]t is that this secondary impact which these zoning ordinances try to keep away from, not the dissemination of ‘offensive’ speech,” id. at 71 n.34. Justice Powell concurred, stating that native land-use regulation is particular, as a result of zoning is “probably the most important perform carried out by native authorities”: “I view [this] case as presenting an instance of progressive land-use regulation, implicating First Modification considerations solely by the way and to a restricted extent.” Id. at 73, 80 (Powell, J., concurring partly and concurring within the judgment) (inside citation marks omitted).

When this Court docket formally adopted the secondary results doctrine in Metropolis of Renton, the context was additionally a zoning ordinance focusing on grownup theaters, and the rationale was intently tied to land use. The case, this Court docket wrote, was “largely dictated” by American Mini Theatres, id. at 46, and the considerations mentioned have been ones associated to “the very important governmental pursuits” in “trying to protect the standard of city life,” id. at 50 (inside citation marks omitted). In stating the rule of regulation, this Court docket wrote: “in American Mini Theatres, a majority of this Court docket determined that, not less than with respect to companies that purvey sexually specific supplies, zoning ordinances designed to fight the undesirable secondary results of such companies are to be reviewed underneath the requirements relevant to ‘content-neutral’ time, place, and method rules.” Id. at 49 (footnote omitted) (emphasis added).

Small surprise that this Court docket later described this line of precedent as “[o]ur zoning circumstances.” Playboy, 529 U.S. at 815.

To make certain, this doctrine has been utilized past zoning within the narrowest sense: in Ward, it was used to uphold municipal sound amplification pointers. However that is nonetheless a intently associated land-use regulation context. And even the abortion-clinic buffer zones at challenge in Hill have been regulatory.

Thus, the secondary results doctrine was developed in a context of deference to native governments’ conventional land-use authority, the place the secondary results have been ones stemming from bodily proximity. That is according to this Court docket’s deferential angle towards zoning, see, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

Second, zoning and different land-use rules not less than match throughout the overarching rubric of “time, place, or method rules” (even when there should be controversy over whether or not they’re nonetheless unconstitutionally content material discriminatory). Within the context of the regulation of grownup leisure, Metropolis of Renton-type circumstances typically come all the way down to the next: “Do not have nude dancing at these hours—have them at these different hours as an alternative” (time); “Do not have nude dancing on this a part of city—have it on this different a part of city as an alternative” (place); “Do not have fully nude dancing—put on G-strings as an alternative” (method). In contrast, a tax can’t simply be described as a time, place, or method regulation, as a result of it doesn’t prescribe when, the place, or easy methods to conduct any actions; it merely attaches a worth to such actions. Taxation doesn’t match effectively with the idea of Metropolis of Renton.

Third, this Court docket has at all times taken a detrimental, bright-line angle towards discriminatory taxation. Way back to McCulloch v. Maryland, the Court docket has not drawn traces between average and extreme taxation; it has reasoned as an alternative {that a} tax, as soon as allowed, may be elevated with out restrict. See 17 U.S. (4 Wheat.) 316, 430-31 (1819). The identical concept has been utilized in First Modification circumstances. For spiritual speech, a license tax is unconstitutional as a result of it may grow to be too “pricey.” Murdock v. Pennsylvania, 319 U.S. 105, 112 (1943). For the press, even a small content-discriminatory tax is unconstitutional due to “the opportunity of subsequent differentially extra burdensome remedy.” Minneapolis Star & Tribune Co. v. Minn. Comm’r of Rev., 460 U.S. 575, 588 (1983); cf. additionally Leathers v. Medlock, 499 U.S. 439, 447 (1991). Petitioner doesn’t concede that this tax is small, however even when it have been, that might be irrelevant. Cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) (“There isn’t a de minimis exception for a speech restriction that lacks ample tailoring or justification.”).

Why cannot one draw a constitutional line between average and extreme taxes? Maybe as a result of “courts as establishments are poorly geared up to guage with precision the relative burdens of varied strategies of taxation.” Minneapolis Star, 460 U.S. at 589. Or maybe as a result of the very concept of a discriminatory tax offends First Modification values: “A tax primarily based on the content material of speech doesn’t grow to be extra constitutional as a result of it’s a small tax.” Forsyth Cnty. v. Nationalist Motion, 505 U.S. 123, 136 (1992); see additionally Ark. Writers’ Venture, 481 U.S. at 229 (content-based taxes are “significantly repugnant to First Modification ideas”). Regardless, this remedy of taxation stands in sharp distinction to the “time, place, or method” inquiry underneath which we ask whether or not rules “don’t unreasonably restrict various avenues of communication,” Metropolis of Renton, 475 U.S. at 47 (emphasis added). The brilliant-line remedy of taxation can be misplaced in Metropolis of Renton‘s versatile balancing inquiry.

Fourth, a comparatively permissive intermediate-scrutiny strategy to content-based taxes can be in rigidity with this Court docket’s case regulation on allowing charges. In Cox v. New Hampshire, 312 U.S. 569 (1941), this Court docket upheld a system of license charges for parades and processions. The state court docket had interpreted the price to be “not a income tax, however one to satisfy the expense incident to the administration of [a statutory scheme] and to the upkeep of public order within the matter licensed.” Id. at 577 (inside citation marks omitted). This Court docket said that “[t]right here is nothing opposite to the Structure within the cost of a price restricted” to such a objective. Id. Shortly afterward, in Murdock, this Court docket struck down a price on “canvassing” and “soliciting” as a result of “the price [was] not a nominal one”; it was not merely “imposed as a regulatory measure and calculated to defray the expense of defending these on the streets and at dwelling towards the abuses of solicitors.” 319 U.S. at 116. Extra lately, in Forsyth County, this Court docket struck down a content-discriminatory allowing price; the federal government’s justification for the price—”elevating income for police companies”—was “an necessary authorities duty” however didn’t “justify a content-based allow price.” 505 U.S. at 135.

These circumstances have grow to be the idea for lower-court case regulation that forestalls governments from utilizing allowing charges on speech to fund packages that transcend the bills of administering the allowing system itself. See, e.g., Sullivan v. Metropolis of Augusta, 511 F.3d 16, 38 (1st Cir. 2007) (“Solely charges that cowl the executive bills of the allow or license are permissible.”); E. Conn. Residents Motion Gp. v. Powers, 723 F.2nd 1050, 1056 (2nd Cir. 1983) (“Licensing charges used to defray administrative bills are permissible, however solely to the extent crucial for that objective.”); Int’l Girls’s Day March Planning Cmte. v. Metropolis of San Antonio, 619 F.3d 346, 371 (fifth Cir. 2010) (charges “clearly linked to the expense of ‘[c]leaning up the procession route’ and the price of any ‘personnel’ and ‘gadgets’ wanted for visitors management”). Permitting the State right here to make use of the charges collected to fund companies distant from the administration of the tax program itself would weaken this Court docket’s extra stringent regulation of allowing charges.

Fifth, if one engaged in intermediate scrutiny underneath Metropolis of Renton, one must decide whether or not the tax is “narrowly tailor-made to serve a big governmental curiosity.” See, e.g., Clark, 468 U.S. at 293-94. Not like strict scrutiny, intermediate scrutiny’s slim tailoring doesn’t require that the federal government choose the least restrictive various. See id. at 299. However the regulation should nonetheless “promote[] a considerable authorities curiosity that might be achieved much less successfully absent the regulation.” Ward, 491 U.S. at 799 (inside citation marks omitted). Even underneath this decrease normal, a focused tax seemingly fails: if the federal government (as right here) is merely asserting a income aim, it may obtain that aim equally effectively by merely making use of a extra broad-based tax—right here, through the use of normal revenues. Metropolis of Renton intermediate scrutiny thus tends to be a poor match for taxation.

Justice Kennedy was proper to look at in Metropolis of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), that authorities “could not . . . impose a content-based price or tax . . . even when [it] purports to justify the price by reference to secondary results.” Id. at 445 (Kennedy, J., concurring within the judgment). Justice Kennedy was merely restating sound and well-established doctrine. The Metropolis of Renton secondary results doctrine doesn’t apply, and has by no means utilized, to taxes. Latest case regulation merely clarifies the background rule, which is that content material discrimination singling out explicit material is decided on the face of the statute—and that content-based enactments are analyzed underneath strict scrutiny. See Volokh, supra, at 657-64.

C. Decrease Courts Have Wrongly Been Increasing the Content material-Impartial Justification Rule.

The dearth of readability within the respective domains of Reed and the content-neutral justification rule has had predictable results.

First, as documented in Half B.1 supra, decrease courts have disagreed on whether or not Metropolis of Renton continues to be good regulation after Reed, and the way a lot of their prior case regulation must be revisited in mild of Reed.

Second, regardless of the sturdy connection between the Metropolis of Renton rationale and zoning and land-use regulation, some courts—not solely the Georgia Supreme Court docket on this case, but additionally the Texas Supreme Court docket—have departed from the regulatory context and utilized Metropolis of Renton to uphold taxes, even ones which can be facially content material discriminatory. See Combs, 347 S.W.3d at 286. However, a federal district court docket—analyzing a problem to the identical Texas tax that had been upheld in Combs—dominated, on the preliminary injunction stage, that the challenger may present a chance of success on the deserves on its First Modification declare. 9000 Airport LLC v. Hegar, No. 4:23-CV-03131, 2023 WL 7414581, at *4-*7 (S.D. Tex. Nov. 9, 2023). The court docket rejected the applicability of Metropolis of Renton: “The First Modification permits restrictions solely on the time, place, or method of protected expression in a secondary results case,” and a tax isn’t a time, place, or method restriction. Id. at *4.

D. The Battle Between These Doctrines Ought to Be Resolved.

“The excellence between content-based and content-neutral rules of speech is among the most necessary in First Modification regulation.” Lakier, supra, at 233. It’s subsequently crucial that the battle between these two doctrines be resolved.

That battle might be resolved in not less than the next 3 ways.

First, this Court docket may overrule the Metropolis of Renton/Hill content-neutral justification rule as being inconsistent with the Reed rule of strict scrutiny.

That’s actually a believable strategy. In spite of everything, this Court docket has already said that Hill is a “distort[ion]” of “First Modification doctrines,” Dobbs, 597 U.S. at 287 & n.65, and the Hill drawback extends to Metropolis of Renton and different circumstances as effectively. As a few of this Court docket’s Justices have famous, this Court docket’s intervening selections have “all however interred” Hill, rendering it “an aberration in [the Court’s] case regulation.” Metropolis of Austin, 596 U.S. at 91-92, 103-04 (Thomas, J., joined by Gorsuch & Barrett, JJ., dissenting); Bruni, 141 S. Ct. at 578 (Thomas, J., respecting denial of certiorari) (noting that the Court docket’s use of intermediate scrutiny in Hill “is incompatible with present First Modification doctrine” (quoting Worth, 915 F.3d at 1117)).

Furthermore, Hill has been criticized ever because it was determined, even by commentators who assist abortion rights. See, e.g., Erwin Chemerinsky, Content material Neutrality as a Central Drawback of Freedom of Speech: Issues within the Supreme Court docket’s Utility, 74 S. Cal. L. Rev. 49, 59 (2000); Kathleen M. Sullivan, Intercourse, Cash, and Teams: Free Speech and Affiliation Selections within the October 1999 Time period, 28 Pepp. L. Rev. 723, 737-38 (2001). A lot of the critique of the Hill reasoning is a critique of all the content-neutral justification rule; this case would thus enable this Court docket to make clear that strict scrutiny is the rule in all these various areas.

Second, this Court docket may make clear that the Metropolis of Renton reasoning is strictly restricted to the zoning and land-use context through which it arose. The Metropolis of Renton reasoning would thus now not be accessible to assist rules that don’t have anything to do with land use (corresponding to abortion-clinic buffer zones), and positively wouldn’t be accessible to assist non-regulatory enactments, such because the tax at challenge on this case.

Third, this Court docket may make clear that, nevertheless far the Metropolis of Renton reasoning extends, it actually doesn’t apply to taxation. This selection wouldn’t invalidate very a lot—see Volokh, supra, at 634-40, for a dialogue of the handful of adult-entertainment taxes that might or wouldn’t be affected. This selection would additionally retain the Metropolis of Renton reasoning for regulatory circumstances of varied sorts (maybe together with buffer zones), however would forestall the growth of the secondary results doctrine to taxation—an growth that might be inconsistent with circumstances like Arkansas Writers’ Venture and that might considerably undo the Reed rule of strict scrutiny.

Both means, this Court docket has been proper to emphasize the overall rule that content material discrimination is extremely suspect and that strict scrutiny is the norm in such circumstances, even when the federal government asserts content-neutral justifications. “The vice of content-based laws—what renders it deserving of the excessive normal of strict scrutiny—isn’t that it’s at all times used for invidious, thought-control functions, however that it lends itself to make use of for these functions.” Madsen, 512 U.S. at 794 (Scalia, J., concurring within the judgment partly and dissenting partly). The Metropolis of Renton exception shouldn’t be expanded to erode or swallow up that rule.

Conclusion

For these causes, petitioner requests that this Court docket grant its petition for a writ of certiorari.