479 U. S. 92
November 17, 1986
The city of Newport, Kentucky banned nudity in any establishments that sold or provided alcohol on its premises. Newport was able to pass such an ordinance based on the 21st Amendment, which gives states a broad range of regulatory power over alcohol. In a 1981 Supreme Court case known as Bellanca, a New York law virtually identical to the Newport ordinance was upheld. The New York law had been challenged on First Amendment grounds, but the Court held that some First Amendment activity could be curtailed through 21st Amendment regulation.
According to the Kentucky Constitution, whether or not a city permits alcohol may be determined by a popular election. Thus, Iacobucci contended that Newport lacked the authority to regulate alcohol, since that domain properly belonged to the people. In a 5-4 per curiam decision, the Supreme Court rejected this argument. The majority held that localities can pass ordinances to regulate based on the 21st Amendment, even if the people retain formal authority over whether or not alcohol may be sold.
As usual, Marshall maintained that both parties should be given a chance to present their cases before the Court rendered a decision. Scalia thought the case should have had oral argument, and I agree wholeheartedly. Finally, Stevens wrote a dissent joined by Brennan. The main thrust of the dissent was that Bellanca was wrongly decided, and should be re-examined. Stevens made a fairly strong argument that the 21st Amendment cannot function as a loophole to get around the First Amendment. He also showed that 21st Amendment precedent was a tangled and contradictory mess in general. I’m not sure how I ultimately come out on this case, but it clearly deserved oral argument, and more rigorous analysis than the 5 Justice majority gave it.
Stepping away from the legalities of the case, I find the ordinance at issue incredibly ironic. There is absolutely nothing immoral about drinking alcoholic beverages. The Bible is perfectly clear on that. Conversely, the sexual sin represented by nude dancing is horribly destructive to both the mind and soul. The Bible is perfectly clear about that too. If a government should have power to heavily regulate or ban one of those two activities, it should be the latter. It tells you something about America’s messed up moral priorities that it can only fight something truly sinful by way of regulating another activity which is not sinful at all.