Court: Towns can ban booze at strip clubs, but they have to do it right

The Supreme Judicial Court ruled today that Town Meeting in Mendon had the right to bar a proposed strip club from serving liquor out of a fear the combination would mean criminals running riot through the streets of the quiet Milford suburb - but said a town bylaw was too broad and should be struck down.

The ruling actually comes as an opinion to the US Court of Appeals for the First Circuit in Boston, which is considering a lawsuit by a company that sought to open a strip club in the Blackstone Valley town, only to have Town Meeting say, yeah, well, here are some studies that prove drinking and naked women inevitably lead to crime.

After Town Meeting voted to bar booze in the town's new adult-entertainment district, Showtime Entertainment filed a First Amendment lawsuit against the town, arguing it could not fully exercise its freedom of expression through gyrations and undulations without the support of alcohol sales. The federal court turned to the SJC advice because of differences in the federal and state constitutions on the right to free speech and alcohol regulation.

The state's highest court agreed that stripping is as worthy of protection under the First Amendment - and Article 16 of the state constitution - as works that are more routinely studied in classes at our tonier universities, but said that by digging up those crime/stripping/drinking studies, Mendon officials had proven a "countervailing State interest" for overriding free speech in this case.

But, the justices continued, Mendon went too far:

The bylaw on its face bans the service of alcohol at any establishment that displays live nudity to its patrons and that is located within the adult entertainment overlay district. We consider a hypothetical establishment licensed to serve alcohol, such as a theater, theoretically located in the adult entertainment overlay district, that wishes to show "the rock musical 'Hair,' the play 'Equus,' and Richard Strauss's opera 'Salome' and Oscar Wilde's play of the same name." Mendoza, 444 Mass. at 200. These mainstream performances feature live nudity and thus fall under the alcohol restriction. Yet this hypothetical theater cannnot be said to be an adult -- or sexually oriented -- business identified as the source of negative secondary effects in the studies utilized by the town. Accordingly, the sweep of that ban encompasses "work[s] of unquestionable artistic and socially redeeming significance" that might be displayed at an establishment serving alcohol in the overlay district but have not been shown to cause the disorderly conduct the town seeks to prevent.

The town protests that the alcohol restriction cannot be read in this manner. We are not so confident. The bylaw would forbid the issuance of a permit for any of the above performances in the spirit of crime prevention. Banning all manner of expression at establishments licensed to serve alcohol on the basis that the expression features nude dancing is not the logical response to the determination that alcohol service in physical proximity to adult businesses increases the incidence of crime. Accordingly, such a ban would clearly violate art. 16 no matter the interest in crime prevention. See Sees, 374 Mass. at 537. The town must seek other, narrower means to pursue its goal of crime prevention.