597 F.

2d 295

Sonya OLITSKY et al., Plaintiffs-Appellants,

v.
Peter O'MALLEY et al., Defendants-Appellees.
No. 78-1410.

United States Court of Appeals,

First Circuit.
Argued Jan. 3, 1979.
Decided April 18, 1979.

Morris M. Goldings, Boston, Mass., with whom Kenneth H. Tatarian, and

Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for
plaintiffs-appellants.
Thomas Miller, Asst. Atty. Gen., Boston, Mass., with whom Francis X.
Bellotti, Atty. Gen., Boston, Mass., were on brief, for defendantsappellees, Larkin, Goodwin and Wiley.
John L. Keefe, Asst. Corporation Counsel, Boston, Mass., for defendantsappellees, O'Malley, et al.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
BOWNES, Circuit Judge.

Plaintiffs-appellants Sonya Olitsky and Joyce Matthews appeal the decision of

the district court, 453 F.Supp. 1052 (D.Mass.1978), denying the injunctive and
declaratory relief sought and dismissing their complaint. Plaintiffs brought their
action under 42 U.S.C. 1983 against defendants, Boston Police Officer Peter
O'Malley, Boston Police Commissioner Joseph Jordan, and members of the
Boston Licensing Board, and the members of the Alcoholic Beverages Control
Commission of the Commonwealth of Massachusetts (ABCC).

Plaintiffs were employed as dancers and hostesses at the Naked I Lounge,

which is located at 666 Washington Street in Boston, Massachusetts. Plaintiffs

charged in their complaint that defendant officials deprived them of their first
amendment right to freedom of speech, and their fifth amendment right to earn
a living (deprivation of property without due process of law) via the fourteenth
amendment by enforcing the so-called "mingling regulations" at the lounge.1
Plaintiffs sought a temporary restraining order and permanent injunction
against defendants and all others who might prevent them from mingling in the
lounge. They also asked the district court to declare the mingling regulations
and Regulation 21 of the ABCC2 unconstitutional because they are vague and
overbroad.
3

After conducting a one day hearing, the district court refused to grant the
temporary restraining order. It ruled that plaintiffs' claim against the ABCC
was not justiciable and held that the challenged mingling regulations were
neither vague nor overboard. The first and fifth amendment constitutional
claims were dismissed.

At the outset, we summarize the pertinent facts. Both entertainers were paid a
weekly salary for performing four dance acts per daily shift. Additionally, they
earned a commission for each drink purchased by a customer for them between
acts.3 Olitsky testified that Ray Comenzo, the owner and manager of the Naked
I Lounge paid the commission to her in cash and that she averaged about $50
per week in commissions. Olitsky explained that she earned the commission for
"(s)ocializing with the clientele," which "entailed conversation and temporary
companionship for those coming to the club." Her primary objective in
mingling with the clientele was, of course, to get them to buy more drinks.
Olitsky testified that Comenzo instructed her when she was hired that she was
to socialize with customers, but that he forbade sexual solicitation, touching
customers or permitting customers to touch her, taking money or giving out her
phone number.

On March 4, 1978, Officer O'Malley and two other Boston police officers
entered the Naked I Lounge and observed performers sitting with customers
with drinks in front of them. The officers notified Comenzo of the mingling
violations. Officer O'Malley testified that it was his practice to instruct the
managers of licensees, including Comenzo, that the entertainers could not "sit
with customers and solicit drinks, solicit sex, insinuate they're going to give
them sex, fondle them, kiss them, put their arms around them." Olitsky testified
that Officer O'Malley's intervention prevented her from mingling with patrons
on March 4, 1978, but that she recommenced these activities after that day.

Plaintiffs raise two issues on appeal. First, they argue that the trial court erred
in ruling that the mingling regulations do not violate plaintiffs' first and

fourteenth amendment rights.4 Second, plaintiffs maintain that the trial court
erred in ruling that plaintiffs did not present a justiciable claim against the
ABCC. We treat these in reverse order.
A. The Justiciability Issue
7

Plaintiffs' contention that the trial court "failed to account for the established
connection" between a violation of the Licensing Board's regulations and the
ABCC's Regulation 21 puts the shoe on the wrong foot. The failure below was
not that of the trial court, but belonged to the plaintiffs who failed to establish
more than a speculative first amendment claim against the ABCC.5 Plaintiffs'
attack on the ABCC for the mingling regulation is misdirected. As the trial
court correctly perceived, "The A.B.C.C. acts to prohibit illegality, which is
defined in terms of other statutes and regulations. It has not determined what
constitutes mingling, but adopts the Licensing Board's definition of an act
prohibited by the Board's authority." Olitsky v. O'Malley, supra, 453 F.Supp. at
1056.

Plaintiffs point to the case of Aristocratic Restaurant of Massachusetts, Inc. v.

Alcoholic Beverages Control Commission (No. 1), --- Mass. ----, 374 N.E.2d
1181 (1978), Appeal dismissed --- U.S. ----, 99 S.Ct. 58, 58 L.Ed.2d 96 (1978),
in which the ABCC used Regulation 21 to sustain the Licensing Board's
suspension of a licensee's liquor license for employee mingling. This, plaintiffs
posit, sufficiently substantiates their claim of the "established connection"
between a mingling violation and the harm that may be caused them by the
ABCC's possible future recourse to Regulation 21.

We do not view the ABCC's past administrative action against the licensee in
Aristocratic No. 1 or the mere existence of Regulation 21,6 as adequate bases
for these plaintiffs to meet the threshold requirement of an actual case or
controversy. U.S.Const. art. III 2; 28 U.S.C. 2201. Plaintiffs have failed to
show that the ABCC has caused or is likely to cause them a cognizable injury
through Regulation 21. As the ABCC asserts, not every mingling violation
reported to it by the Licensing Board triggers enforcement through Regulation
21.

10

Plaintiffs cite Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37
L.Ed.2d 830 (1973), for the proposition that where first amendment rights are
involved, the traditional rules of standing are relaxed. However, Broadrick
speaks to the standing of a plaintiff to raise the issue of the facial overbreadth of
a statute or regulation as it might infringe on the rights of the parties not before
the court. In this case, plaintiffs challenge the constitutionality of these

mingling regulations As applied to them. We do not doubt plaintiffs' standing to

challenge the mingling regulations, but we fail to see how their claim against
the ABCC meets the threshold requirements of ripeness. In Golden v. Zwickler,
394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), the Supreme
Court stated: "The constitutional question, First Amendment or otherwise, must
be presented in the context of a specific live grievance." Here, we have neither
a first amendment claim nor a justiciable grievance insofar as plaintiffs and the
ABCC are concerned. Cf. Rodos v. Michaelson, 527 F.2d 582, 584-85 (1st Cir.
1975) (plaintiffs presented hypothetical case, thus no standing).
B. The Constitutionality of the Mingling Regulations
11
12

Plaintiffs argue that their mingling, which consists mainly of talk although
admittedly commercial in nature, is constitutionally protected speech, citing
Virginia State Bd. of Pharmacy v. Virginia Consumer Council, 425 U.S. 748,
96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Their main contention is that, since they
purportedly showed an infringement upon protected speech, it was incumbent
upon defendants to establish an overriding justification for the infringement,
and that the defendants did not do so here. In their reply brief, plaintiffs also
maintain that the challenged regulations are overbroad.

13

Defendants argue that the mingling regulations are a prophylactic measure to

regulate and control the sale of liquor and to prevent illegal conduct associated
with such sales.

14

We consider it curious that nowhere in plaintiffs' argument is there mention of

the twenty-first amendment.7 This amendment is pertinent here, since the
district court's opinion is bottomed on the state's authority to regulate the sale of
alcoholic beverages. "Consideration of any state law regulating intoxicating
beverages must begin with the Twenty-first Amendment . . .." Seagram & Sons
v. Hostetter, 384 U.S. 35, 41, 86 S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966).

15

In Aristocratic No. 1, supra, 374 N.E.2d 1181, the Massachusetts Supreme

Judicial Court considered the constitutionality of Condition 13, which was
challenged on both federal and state grounds. Condition 13 provides:
"THIRTEENTH: Entertainment, if any, must be confined to a particular place,
and the entertainers must not be allowed to mingle with or circulate among the
patrons." The court rejected the licensee's contention that the regulation was
vague, holding: "We believe that where an entertainer indiscriminately
approaches patrons soliciting them to purchase drinks for him or her, the
entertainer has 'mingle(d) with or circulate(d) among the patrons.' " Id. at 1185.
The court held that, when mingling, the entertainers were not engaged in

expressive conduct. It concluded that Condition 13 serves the important

governmental interest of preventing the indiscriminate solicitation of drinks.
This interpretation of the regulation by the state's highest court is conclusive
here. N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed.2d 405
(1963); Smiley v. Kansas, 196 U.S. 447, 455, 25 S.Ct. 289, 49 L.Ed. 546
(1905).
16

We do not read the district court's decision, as plaintiffs urge, to be at odds with
the Aristocratic No. 1 decision vis-a-vis the objective of the mingling
regulations. The district court correctly followed the state court's interpretation
of the goal of the regulations, stating: "The mingling prohibition is an
administrative approach towards regulation of the sale and consumption of
alcohol distinct from the bans on solicitation of drinks or solicitation for sexual
activities." Olitsky v. O'Malley, supra, 453 F.Supp. at 1058.

17

The scope of authority vested in the states by the twenty-first amendment has
yet to be precisely determined.8 At issue here is how the state's police power,
together with the twenty-first amendment, interfaces with plaintiffs'
constitutional rights.

18

We recognize that the Supreme Court has not been unwavering in its
consideration of the twenty-first amendment. In California v. LaRue, 409 U.S.
109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), licensees and dancers questioned the
constitutionality of a state regulation which prohibited explicitly sexual live
entertainment or films in establishments having a liquor license. In upholding
the regulation, Justice Rehnquist focused on the state's authority under the
twenty-first amendment to regulate the sale of alcohol, paying scant attention to
the petitioners' first and fourteenth amendment claims. The Court noted that the
State Department of Alcohol Beverage Control promulgated the regulation after
conducting hearings which revealed a link between the licensed establishments
and "bacchanalian revelries." The Court held that assessment of the regulation
required under the standards of either Roth v. United States, 354 U.S. 476, 77
S.Ct. 1304, 1 L.Ed.2d 1498 (1957), or United States v. O'Brien, 391 U.S. 367,
88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), was not necessary, since it was
established that these were performances that "partake more of gross sexuality
than of communication." LaRue, supra, 409 U.S. at 118, 93 S.Ct. at 397.

19

The thrust of the twenty-first amendment was explored:

20
While
the States, vested as they are with general police power, require no specific
grant of authority in the Federal Constitution to legislate with respect to matters
traditionally within the scope of the police power, the broad sweep of the Twenty-

first Amendment has been recognized as conferring Something more than the
normal state authority over public health, welfare, and morals (emphasis added).
21

Id. at 114, 93 S.Ct. at 395.

22

The enigmatic "something more" instilled by the twenty-first amendment

sufficed in LaRue to prohibit the showing of motion pictures and live
performances, both activities involving expressive conduct that had hitherto
been accorded broad Prima facie first amendment protection. See, e. g., Schacht
v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970) (theatrical
performance); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96
L.Ed. 1098 (1952) (films). In this case, the mingling regulations restrict
commercial conduct, the indiscriminate solicitation of drinks. The
Massachusetts regulation, unlike the California regulation upheld in LaRue,
does not go as far as to regulate the conduct of the plaintiffs when they are
performing.

23

The standard applied in LaRue was: given the presumption in favor of the
validity of a state regulation within the compass of the twenty-first amendment,
were the regulations rational in light of the objectives sought. Id., 409 U.S. at
118-19, 93 S.Ct. 390.9

24

Dicta in Craig v. Boren, 429 U.S. 190, 206, 97 S.Ct. 451, 50 L.Ed.2d 397
(1976), written by Justice Brennan, suggests that California v. LaRue, supra,
409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 should be limited to situations
where there are performances that partake more of gross sexuality than of
communication at establishments that serve liquor. The Court carefully
reviewed the legislative history and case law relevant to the twenty-first
amendment and concluded that it operated primarily to create an exception to
the commerce clause. The Court held that the twenty-first amendment did not
alter the application of equal protection standards.10

25

The district court here found that there was no showing that either plaintiff
engaged in grossly sexual conduct. It concluded that the mingling regulations
were aimed at prohibiting the entertainers' commercial conduct which resulted
in incidental limitations on their first amendment rights of speech. Accordingly,
the district court determined that the standard enunciated in LaRue, supra, 409
U.S. at 118, 93 S.Ct. 390, was inapposite. The court, instead, examined the
regulations in light of the four part test of United States v. O'Brien, supra, 391
U.S. at 377, 88 S.Ct. 1673,11 and held that the mingling regulations withstood
constitutional attack.

26

Plaintiffs do not contest the district court's conclusion that the mingling
regulations satisfy two of the four requirements of O'Brien, supra, at 377, 88
S.Ct. 1673: that the Licensing Board has the power to regulate mingling in
licensed premises and that the governmental interest is unrelated to the
suppression of free expression. Plaintiffs insist, however, that the other two
requirements were not met: that the mingling regulations further an important
governmental interest and that the restriction is no greater than is essential to
further the government's interest.

27

As plaintiffs concede, the activity regulated by the mingling regulations is

commercial conduct. Although commercial speech may be entitled to some first
amendment protection, Virginia Pharmacy Bd. v. Virginia Consumer Council,
supra, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346, the Supreme Court has
afforded it "a limited measure of protection, commensurate with its subordinate
position in the scale of First Amendment values, while allowing modes of
regulation that might be impermissible in the realm of non-commercial
expression." Ohralik v. Ohio State Bar Association, 436 U.S. 447, 456, 98 S.Ct.
1912, 1918, 56 L.Ed.2d 444 (1978). In Ohralik, the Court upheld the
disciplinary action of a state bar association taken against an attorney who
violated a rule that prohibited solicitation of clients. The Court reasoned that
the state had a strong interest in protecting consumers and regulating
commercial transactions, especially among members of a licensed profession.
Id. at 460, 98 S.Ct. 1912.

28

The Court distinguished Ohralik from Virginia Pharmacy, supra, 425 U.S. at
748, 96 S.Ct. 1817, 48 L.Ed.2d 346, and Bates v. State Bar of Arizona,433 U.S.
350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) (both cases pertain to rules
prohibiting professionals' use of advertisements), on the basis that "(i)n-person
solicitation by a lawyer of remunerative employment is a business transaction
in which speech is an essential but subordinate component." Ohralik, supra,
436 U.S. at 457, 98 S.Ct. at 1919. The same holds true for the mingling
regulations challenged before us. As narrowly interpreted by the Massachusetts
Supreme Judicial Court, the regulations prohibit entertainers from
indiscriminately approaching customers for the purpose of enticing them to
purchase liquor. Miss Olitsky testified, in effect, that her purpose in mingling
was to hustle drinks. The regulations as interpreted proscribe only that
conversation which leads to the purchase of drinks for the entertainer,
obviously a business transaction (at least from the dancer's point of view). As
the Court noted in Ohralik, the level of appropriate judicial scrutiny is thus
lower. Id. at 457, 98 S.Ct. 1912.

29

We reject plaintiffs' argument that it was incumbent upon the trial court to

delve into the ills sought to be cured by the Licensing Board's prohibition of
mingling. Defendants have a substantial interest in regulating the sale and
consumption of alcohol based on their police power coupled with the authority
granted under the twenty-first amendment. As stated by the Supreme Judicial
Court of Massachusetts and reiterated by the district court, the objective of the
mingling regulations is to curtail the indiscriminate solicitation of drinks by
entertainers. It is not up to the trial court, nor is it our function, to formulate
reasons supporting these regulations.12 The trial court properly framed the
inquiry in terms of whether defendants showed that it was rational to assume
that mingling contributes to the increased sale and consumption of alcoholic
beverages. The record, particularly the testimony of plaintiff Olitsky and some
seven Boston Police Officers, supports the trial judge's conclusion that
defendants made such a showing.
30

Plaintiffs' argument that the mingling regulations are unconstitutional because

there are other, less drastic, alternative means to accomplish the desired
legislative goal presumes that the legislative goal was the avoidance of sexual
solicitations. This is an incorrect assumption, leading to an unwarranted
conclusion. As the Massachusetts Supreme Judicial Court found, the objective
of the mingling regulations is to restrict an entertainer's indiscriminate
solicitation of drinks from customers. It is aimed at the sale and consumption of
liquor, not sex. Not only are these regulations no greater than essential to
further the governmental interest, but as the Supreme Judicial Court intimated,
the mingling regulations may be the Only effective method to prohibit an
entertainer's indiscriminate solicitation of drinks. Aristocratic No. 1, supra, 374
N.E.2d at 1186 n. 6.

31

Lastly, we reject plaintiffs' overbreadth challenge on two grounds: first, the

Massachusetts Supreme Judicial Court has already narrowly construed the
mingling regulations in Aristocratic No. 1, supra, 374 N.E.2d at 1185, and,
second, the United States Supreme Court has just recently determined that an
overbreadth analysis does not apply in the commercial context. In Friedman v.
Rogers, --- U.S. ----, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), the Court upheld a
state act banning the practice of optometry under a trade name. The Court
surveyed the limited protection afforded commercial speech stating:

32
Because
of the special character of commercial speech and the relative novelty of
First Amendment protection for such speech, we act with caution in confronting
First Amendment challenges to economic legislation that serves legitimate
regulatory interests. Our decisions dealing with more traditional First Amendment
problems do not extend automatically to this as yet uncharted area. See, E. g., id., at
462 n. 20 (Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d

444 (1978)) (overbreadth analysis not applicable to commercial speech).

33

Id. at ---- n. 9, 99 S.Ct. at 894.

34

We conclude that, given the narrow construction of the word "mingle" by the
Massachusetts Supreme Judicial Court, the three mingling regulations are valid
and plaintiffs have not shown that their first amendment rights have been
violated.

35

Affirmed.

Boston Licensing Board entertainment license Regulation 8(B) provides:

Attire and conduct of employees, entertainers, and other persons:

B. Mingling is forbidden except by owners and managers in the performance of
their duties and waitresses and waiters involved in the service of food and
beverages.
Boston Licensing Board entertainment license Condition 6 provides:

Artists must not mix with patrons or circulate around the room
Boston Licensing Board alcoholic beverages license Condition 13 provides:
THIRTEENTH: Entertainment, if any, must be confined to a particular place,
and the entertainers must not be allowed to mingle with or circulate among the
patrons.

Massachusetts Alcoholic Beverages Control Commission Regulation 21

provides:
No licensee for the sale of alcoholic beverages shall permit any disorder,
disturbance or illegality of any kind to take place in or on the licensed premises.
The licensee shall be responsible therefor, whether present or not.

A dancer/hostess received a commission of $1 for most drinks. If the customer

purchased a $40 bottle of champagne, her commission was $6, for a $75 bottle,
she earned $12, and for a $100 bottle of champagne, she received a commission
of $20

The fifth amendment claim is not before us on appeal

In their complaint, plaintiffs allege that Officer O'Malley was acting as agent
for all other named defendants when he entered the Naked I Lounge on March
4, 1978, and told Sonya Olitsky not to mingle with the patrons. At trial,
however, plaintiffs were unable to substantiate this claim and the ABCC
conclusively established that at no time was O'Malley working for or connected
with the ABCC

As the trial court noted in its decision, the Massachusetts Supreme Judicial
Court held in Aristocratic Restaurant of Massachusetts, Inc. v. Alcoholic
Beverages Control Commission (No. 2), --- Mass. ----, 374 N.E.2d 1192, 1193
(1978), the word "illegality" as used in Regulation 21 is not impermissibly
vague
7 U.S.Const. Amend. XXI, 2: "The transportation or importation into any
State, Territory, or possession of the United States for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

For a discussion of the Supreme Court's treatment of the twenty-first

amendment, See Versfelt, The Effect of the Twenty-First Amendment on State
Authority to Control Intoxicating Liquors, 75 Colum.L.Rev. 1578 (1975); Hart,
Retail Price Maintenance for Liquor: Does the Twenty-First Amendment
Preclude a Free Trade Market?, 5 Hastings Const.L.Q. 507, 510-27 (1978)

Justice Rehnquist summarized the holding of California v. LaRue, 409 U.S.

109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), in Doran v. Salem Inn, Inc., 422 U.S.
922, 932-33, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975). "In LaRue, however,
we concluded that the broad powers of the States to regulate the sale of liquor,
conferred by the Twenty-First Amendment, outweighed Any First Amendment
interest in nude dancing and that a State could therefore ban such dancing as a
part of its liquor license program" (emphasis added)

10

This circuit anticipated a limiting construction of California v. LaRue, supra,

409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 in Women's Liberation Union of
Rhode Island v. Israel, 512 F.2d 106 (1st Cir. 1975), cited with approval in
Craig v. Boren, 429 U.S. 190, 208, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). We
affirmed the district court's finding that a Rhode Island statute which prohibited
certain liquor licenses from serving beverages to women violated the equal
protection clause of the fourteenth amendment. We rejected the appellants'
argument that our construction of the twenty-first amendment was too narrow
and we held:
LaRue, while it reiterates the proposition long embraced by the Court that the
states have broad powers to regulate the sale of liquor, does not release the
states from the requirement that the objective of the regulation be permissible,

and that the means selected be rationally related to the end to be achieved.
Women's Liberation Union, supra, at 108.
11

The four part test enunciated in United States v. O'Brien, 391 U.S. 367, 377, 88
S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968) is
a government regulation is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that
interest.

12

Plaintiffs rely on four cases to support their assertion that, absent a showing of
sufficient factual justification for a regulation that infringes on protected
speech, the regulation must fail. Plaintiffs misconstrue both the nature of the
interests involved in these cited cases and their holdings. In Craig v. Boren, 429
U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), plaintiffs showed an
infringement of their rights guaranteed by the equal protection clause. In
Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125
(1975), and in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct.
2440, 49 L.Ed.2d 310 (1976), plaintiffs challenged laws which they viewed as
imposing censorship on their protected speech. In California v. LaRue, supra,
409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, plaintiffs established that the
statute infringed on their expressive conduct. By contrast, the nature of the
interest advanced by the plaintiffs in this case is commercial speech, which is
entitled to only minimal protection
In Craig v. Boren, supra, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397, the
Supreme Court held that the state scheme prohibiting the sale of 3.2% Beer to
females under the age of eighteen and males under the age of twenty-one
violated the equal protection clause. The statute was found unconstitutional not
because there was any failure on the part of the state to come forward with
statistics, legislative history, or expert witnesses, but because the many reasons
proffered to support the statute failed to justify the gender based discrimination.
In Erznoznik v. City of Jacksonville, supra, 422 U.S. 205, 95 S.Ct. 2268, 45
L.Ed.2d 125, an ordinance prohibited drive-in theaters from exhibiting films
containing nudity if the screen were visible from the street. Here, too, the state
presented a goodly number of justifications for the ordinance, none of them,
however, was sufficient to outweigh the censorship imposed by the ban. The
Court did note that a last minute argument at oral argument to the effect that the
ordinance was aimed at traffic regulation was unsupported by the record.

However, this alone was not the reason the Court rejected the argument, rather,
the Court considered the contention and decided that it was an invalid purpose
since it would be "strikingly underinclusive." Id. at 214, 95 S.Ct. 2268.
Likewise, California v. LaRue, supra, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d
342, and Young v. American Mini Theatres, Inc., supra, 427 U.S. 50, 96 S.Ct.
2440, 49 L.Ed.2d 310, do not turn on whether or not the state presented a
sufficient quantity of facts to justify the challenged regulation, but whether the
justification itself was sufficient to outweigh the individual rights involved.