| 
Article 16 of the Massachusetts Constitution’s Declaration of Rights assures that “the right of free speech shall not be abridged.” This month inShowtime Entertainment, LLC v. Town of Mendon, the Massachusetts Supreme Judicial Court invoked this fundamental right to strike down a local bylaw banning alcohol at adult stores and strip clubs.
In June 2008, Mendon changed its zoning bylaws to establish an adult entertainment overlay district. Showtime Entertainment applied for a license for a nude dancing entertainment facility. A local citizens group petitioned for additional bylaws restricting adult entertainment establishments. The group voiced concerns about traffic and harm to Mendon’s rural character, and cited studies connecting alcohol at strip clubs to increased crime.
In response, the town adopted zoning bylaws limiting building size and operating hours for adult businesses, but not other businesses. To control crime, the town adopted a general bylaw banning alcoholic beverages at adult businesses, including any “establishment which displays live nudity for its patrons” as defined in the Massachusetts zoning act.
Showtime submitted another application complying with the new bylaws, and received town approval. It then sued the town in federal district court, claiming that the zoning restrictions violated its right to freedom of expression under the U.S. Constitution, and the alcohol ban violated its freedom of speech under the Massachusetts Declaration of Rights. The federal district court dismissed Showtime’s claims, and ruled in favor of the town. Showtime appealed.
Underinclusive And Invalid
The U.S. Court of Appeals was more receptive to Showtime’s arguments. The court first addressed the zoning bylaws limiting building size and operating hours. While noting that towns have some leeway in regulating undesirable secondary effects of businesses (such as excessive traffic), a town cannot impose stricter regulations on adult businesses than on other businesses that produce the same secondary effects. Bylaws that target only adult businesses in this manner are “underinclusive,” and therefore unconstitutional. The Court of Appeals agreed with Showtime that the zoning bylaws were underinclusive, and invalidated them.
Showtime’s challenge to the general bylaw banning alcohol was based on the Massachusetts Declaration of Rights, not the U.S. Constitution. Therefore, the Court of Appeals sought guidance on the bylaw’s validity from the Massachusetts Supreme Judicial Court, which has famously expanded the free speech protections under the Declaration of Rights. The SJC’s rules allow it to answer questions certified by the Court of Appeals.
The Court of Appeals certified two questions to the SJC regarding the alcohol ban. First, do the studies and other evidence viewed by the town before adopting the bylaw justify the ban? Second, if the ban is justified, is it adequately tailored not to restrict other forms of expression? Affirmative answers to both questions were necessary for the bylaw to survive.
Beginning with the first question, the SJC noted that freedom of speech under the Massachusetts Declaration of Rights is more protective of individual rights than freedom of speech under the U.S. Constitution’s First Amendment. This protection extends to adult businesses catering to the “artistic preferences and prurient interests of the vulgar.” Nevertheless, towns have a legitimate interest in reducing crime connected to strip clubs. In Mendon, the town considered existing studies associating crime with alcohol and nude dancing, before adopting the restrictive bylaw. The SJC was satisfied that there was sufficient evidence to justify the bylaw, and answered the Court of Appeals’ first certified question affirmatively.
Turning to the second certified question – whether the bylaw was narrowly tailored to eliminate anticipated evils without restricting expression that does not create the same evils – the SJC was less sympathetic to the town. Observing that the bylaw banned alcohol where nude dancing is performed, the SJC envisioned hypotheticals where the alcohol ban could discourage mainstream theaters from staging worthier productions like the rock musical “Hair” or the play “Equus,” which include nude scenes. The SJC labeled the bylaw as overbroad and answered the second certified question in the negative, thus invalidating the bylaw.
With this favorable SJC decision in hand, Showtime drew closer to opening a bar with nude dancing in Mendon. Probably few Mendon residents will want to be seen anywhere near Showtime’s strip club, but shadowy out-of-towners will no doubt travel miles to Mendon to slake their “artistic preferences and prurient interests” while enjoying a few cocktails before their long drive home.
