Commonwealth v. Sees , 374 Mass. 532 ( 1978 )

Braucher, J.

The defendant was the manager of premises in Revere for a corporation which held an entertainment license and an all alcoholic beverage license. He has been convicted of violation of a Revere ordinance because a female dancer performed on the dance floor wearing only a “G-string.” In Revere v. Aucella, 369 Mass. 138,140 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976), we held that the ordinance “is not on its face inconsistent with our Constitution or laws,” but we decided “no question as to the validity or application of the ordinance in any particular circumstances.” We now hold that the application of the ordinance to the circumstances of this case abridges the right of free speech, contrary to art. 16 of the Declaration of Rights of the Massachusetts Constitution.

A complaint for “Violation City Ordinance Section 13-26,” filed in the District Court of Chelsea on July 3, 1974, charged that on July 2 the defendant “did employ or permit any person to wit: Cindy Martini in or on the premises licensed under Ch 140 Sec 181 or 183A and or Ch 138 of the General Laws, while such person is unclothed or in such attire as to expose to view any portion of the areola of the female breast or any portion of the public [sic] hair, cleft of the buttocks or genitals.” On conviction on July 11, the defendant appealed, and the case was tried de novo in the Superior Court without a jury on a statement of agreed facts, the defendant’s motion to dismiss the complaint, and an evidentiary hearing on that motion. The judge issued his findings and order on December 6, 1976, denying the motion, finding the defendant guilty, and imposing a fine of $50. The defendant’s bill of exceptions was assented to and allowed, and we allowed the defendant’s application for direct appellate review.

The following facts appear in the bill of exceptions. Charger Investments, Inc. (Charger), held an entertainment license under G. L. c. 140, § 183A, and a common victualler’s license and an all alcoholic beverage license under G. L. c. 138, and did business on the licensed premises in Revere, which were owned by the estate of Alfonso Aucella. The defendant was not a licensee but was an employee of Charger and the manager, and on June 24, 1974, as manager, he applied for a license renewal. On July 2, 1974, Charger presented as entertainment individual female dancers accompanied by rock and roll music from phonograph records and a live band. There was no admission or cover charge, and patrons could leave at any time without charge other than for food or drink. A sign outside bore the word “Entertainers” and the silhouette of a “dancing girl.” About 6:45 p.m. on July 2, police officers observed a female dancer, Cindy Martini, performing for one or two minutes on the dance floor wearing only a “G-string.” She did not perform with or near any other dancer or come into contact with any other dancer or patron. The defendant was present as manager.

The complaint in the present case rests on § 13-26 (a)¹ of the same ordinance we considered in Revere v. Aucella, 369 Mass. 138 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U. S. 877 (1976). We there read that section as applying only to “licensed premises” subject both to a license for the sale of alcoholic beverages to be served and drunk on the licensed premises and to an entertainment license. “So read,” we said, “the ordinance is not unconstitutional on its face.” But, we thought, “we should not anticipate constitutional and other questions which may arise from particular applications of the ordinance.” Id. at 146. We also held that the ordinance could not be enforced by injunction, vacated a judgment enjoining its enforcement, and ordered a new judgment declaring that the ordinance “is not invalid on its face, without prejudice to any question which may arise in a prosecution for a particular violation of the ordinance.” Id. at 147.

The present defendant, who was not a party to the Aucella case, asks us to reconsider our holdings in that case, citing the dissenting opinion of two Justices. We decline the invitation. But we do consider the constitutional and other questions which arise from the particular application of the provisions of the ordinance to the defendant. We do not pass on “such questions as whether their possible application in one hypothetical case would render them overbroad and hence invalid in another hypothetical case, how far they are severable, or whether they are underinclusive so as to discriminate unfairly.” Boston Licensing Bd. v. Alcoholic Beverages Control Comm’n, 367 Mass. 788, 794 (1975). Cf. California v. LaRue, 409 U.S. 109, 119 n.5. (1972).

We reject the defendant’s argument that § 13-26 (a) is a mere declaration of policy rather than a prohibition of conduct. The defendant was the manager of “licensed premises”; there was evidence that he did “employ or permit” a person on those premises in such attire as to expose to view parts of her body mentioned in the ordinance. Thus he could be found to have done what was “forbidden.” The ordinance does not require that the defendant himself be a licensee.

More serious is the claim that dance, though not literally “speech,” is conduct designed to express ideas, that the governmental interest in its regulation is related to the suppression of free expression, and that the incidental restriction of First Amendment freedoms involved in this case is greater than is essential to the furtherance of that governmental interest. See United States v. O’Brien, 391 U.S. 367, 376-377 (1968). Before 1975 prohibition of topless or bottomless dancing in designated establishments was widely upheld as directed against conduct rather than speech. Jones v. Birmingham, 45 Ala. App. 86 (1969), cert, denied, 396 U.S. 1011 (1970). Yauch v. State, 109 Ariz. 576 (1973). Robinson v. State, 253 Ark. 882 (1973). Crownover v. Mustek, 9 Cal. 3d 405 (1973), cert, denied sub nom. Reynolds v. Sacramento, 415 U.S. 913, and sub nom. Owen v. Musick, 415 U.S. 931 (1974). Hoffman v. Carson, 250 So. 2d 891 (Fla.), appeal dismissed, 404 U.S. 981 (1971). People v. Moreira, 70 Misc. 2d 68 (N.Y. Dist. Ct. 1972). Portland v. Derrington, 253 Or. 289, cert, denied, 396 U.S. 901 (1969). Wayside Restaurant, Inc. v. Virginia Beach, 215 Va. 231 (1974). Seattle v. Marshall, 83 Wash. 2d 665, cert, denied, 419 U.S. 1023 (1974). State v. Maker, 48 Wis. 2d 612 (1970), cert, denied, 401 U.S. 1013 (1971). See Annot., 49 A.L.R.3d 1084, 1094 (1973). But it now seems clear that such ordinances violate the First Amendment if not limited to places dispensing alcoholic beverages. Doran v. Salem Inn, Inc., 422 U.S. 922, 932-934 (1975). Salem Inn, Inc. v. Frank, 522 F.2d 1045,1048-1050 (2d Cir. 1975). Starshock, Inc. v. Shusted, 493 F.2d 1401 (3d Cir.), rev’g 370 F. Supp. 506 (D.N.J. 1974). Saxe v. Brennan, 416 F. Supp. 892, 894-895 (E.D. Wis.), affd, 544 F.2d 521 (7th Cir. 1976). Attwood v. Purcell, 402 F. Supp. 231, 236 (D. Ariz. 1975). Koppinger v. Fairmont, 311 Minn. 186, 199 (1976). People v. Nixon, 88 Misc. 2d 913 (N.Y. App. Term 1976).

The present ordinance, however, is so limited. As matter of Federal law “the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment,” outweigh “any First Amendment interest in nude dancing” and a State can therefore “ban such dancing as a part of its liquor license program.” Doran v. Salem Inn, Inc., supra at 932-933. See Scott v. Department of Alcoholic Beverage Control, 434 U.S. 1003 (1978). As we held in the Aucella case, the power of the State may be exercised by the city through an ordinance unless inconsistent with the Constitution or laws enacted by the General Court, and the present ordinance is not inconsistent with laws enacted by the General Court. 369 Mass, at 143-146.

There remains for consideration the free speech provision of art. 16 of our Declaration of Rights:² “The right of free speech shall not be abridged.” That provision on its face draws no distinction between free speech in a bar and free speech on a stage, and no provision of our Constitution gives a preferred position to regulation of alcoholic beverages. So far as the record before us discloses, the dancer may have been rendering a selection from the “Ballet Africains” or some other work of unquestionable artistic and socially redeeming significance. See Doran v. Salem Inn, Inc., 422 U.S. 922, 933 (1975). Though not shown by proof, it seems more likely that she was engaged in “the customary ‘barroom’ type of nude dancing,” involving “only the barest minimum of protected expression.” Id. at 932. To distinguish between the two, however, would be to cast on the police and courts “the anomalous duty of serving as ... artistic constables,” evaluating the artistic worth and tasteful quality of the performance in its total context. Commonwealth v. Horton, 365 Mass. 164, 178 (1974) (Kaplan, J., concurring). No governmental interest is shown to warrant the effort. See California v. LaRue, 409 U.S. 109, 130-133 (1972) (Marshall, J., dissenting). Moreover, the artistic preferences and prurient interests of the vulgar are entitled to no less protection than those of the exquisite and sensitive esthete. See Salem Inn, Inc. v. Frank, 522 F.2d 1045, 1048-1049 (2d Cir. 1975).

The activity here in question was protected expression under art. 16 and the ordinance is therefore invalid as applied. The regulation of nudity on licensed premises, we have held, is not unconstitutional on its face. But we are not here concerned with a topless waitress. See California v. LaRue, 409 U.S. 109, 112 n.2 (1972). Nor with the imposition of nudity on an unsuspecting or unwilling person. See Revere v. Aucella, 369 Mass. 138, 142-143 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976). The defendant employed or permitted a female dancer to perform to music on a dance floor for the entertainment of patrons. She did not mingle with other employees or with patrons, and there is no contention that the performance was obscene. Contrast Aristocratic Restaurant of Mass., Inc. v. Alcoholic Beverages Control Comm’n (No. 1), post 547 (1978); Aristocratic Restaurant of Mass., Inc. v. Alcoholic Beverages Control Comm’n (No. 2), post 564 (1978). Whatever the artistic merit of her performance, we do not think it could constitutionally be suppressed.

We are somewhat troubled by the thought that some such performances may be demeaning to the employees who perform and to others like them. But no argument on these lines seems to have entered into the process of enactment of the ordinance, and no such argument is presented to us. We leave the point to another day.

As applied to the defendant, the ordinance violates art. 16.

Exceptions sustained.

1 Revere Rev. Ords. c. 13, art. 3, § 13-26 (1972): “The following acts or conduct in or on premises licensed in accordance with Chapter 140, Sec. 181 or Sec. 183A are deemed contrary to the public need and to the common good and therefore no license shall be held for the sale of alcoholic beverages to be served and drunk on the licensed premises where such acts or conduct are permitted.

“ (a) It is forbidden to employ or permit any person in or on the licensed premises while such person is unclothed or in such attire as to expose to view any portion of the areola of the female breast or any portion of the pubic hair, cleft of the buttocks, or genitals.”

2 As amended by art. 77 of the Amendments to the Massachusetts Constitution.