Gravely v. Bacon ( 1993 )

Hunt, Presiding Justice,

concurring.

I concur in the judgment only because Gravely did not challenge the constitutionality of the Smyrna ordinance under the first two prongs of the three-prong test of Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 256 (297 SE2d 250) (1982); that is, he did not contend the ordinance does not further the legitimate government interest in reducing criminal activity and protecting the deterioration of neighborhoods engendered by adult entertainment establishments, and he did not contend that government interest is unrelated to the suppression of speech. Rather, his only challenge to the Smyrna ordinance was that it was overbroad. I agree with the majority that the ordinance, as construed, is sufficiently narrowly drawn to meet the third prong of the Paramount test, that is, the restriction of protected speech is no greater than is essential to the furtherance of the government interest.

Moreover, I write separately to clarify Section 1 (b) of our opinion in Harris v. Entertainment Systems, 259 Ga. 701, 702 (386 SE2d 140) (1989) and to reiterate that notwithstanding the very broad powers accorded the states under the Twenty-First Amendment to regulate the sale of alcohol, in analyzing statutory restrictions on nude dancing in establishments where alcohol is sold we will apply the three-prong test of Paramount Pictures Corp. v. Busbee.

In California v. LaRue, 409 U. S. 109 (93 SC 390, 34 LE2d 342) (1972) and New York State Liquor Auth. v. Bellanca, 452 U. S. 714 (101 SC 2599, 69 LE2d 357) (1981), the United States Supreme Court, citing the broad powers accorded the states under the Twenty-First Amendment to regulate the sale of alcohol (powers “conferring something more than the normal state authority over public health, welfare, and morals” 409 U. S. at 114, 93 SC at 395) upheld state statutes prohibiting certain forms of nude dancing in establishments selling alcohol. In light of these cases, the state in Harris naturally argued that the statute in question was a proper exercise of the state’s power accorded by the Twenty-First Amendment to regulate the sale of alcohol. In rejecting that argument, we analyze the validity of the statute under the First Amendment of our state constitution. Thus, while the Twenty-First Amendment might allow broader infringement on federal First Amendment rights where the sale of alcohol is involved, any restriction of nude dancing under our state First Amendment is governed by the Paramount test, regardless of the sale of alcohol in the premises.