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Georgia Supremes Award Night Club Enhanced Legal Review

Free speech case involves a challenge to an amended county ordinance that forces clubs to close one hour after the bar closes, and embraces both the U.S. and Georgia constitutions.

Georgia Supremes Award Night Club Enhanced Legal Review

ATLANTA—In a ruling handed down March 23, the Supreme Court of Georgia reversed and remanded with direction a lower court order in Great American Dream v DeKalb County that denied the Pin Ups Night Club in Decatur, Georgia an injunction in the case, which involves an ordinance amended by DeKalb County Board of Commissioners in 2010 that forces clubs to close "one hour after the end of the legal period for selling alcoholic beveragee... and not reopen until 9:00 a.m."

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Upon passage of the amended ordinance, Pin Ups parent Great American Dreams filed a petition with the court seeking temporary and permanent injunctive relief, and a hearing was held on their request for an interlocutory injunction; the trial court denied the petition, pending trial. According to Justice P. Harris Hines, however, the lower court used the wrong standard of review.

"In denying the interlocutory injunction," he wrote, "the trial court characterized Pin Ups' petition as primarily raising due process concerns, concluded that the ordinances met the 'rational basis' test... and that Pin Ups thus had little likelihood of succeeding on the merits of its complaint." (Readers of AVN will of course recall that "rational basis" is the lowest level of scrutiny applied by courts engaged in judicial review.)

In order to decide whether Pin Ups' claim that the wrong standard had been used in the lower court's analysis of the impact of the ordinances on its speech. Hines wrote, "It must be determined whether Pin Ups asserted violations of a right under the First Amendment to the United States Constitution, or under Article I, Section I, Paragraph V, of the Georgia Constitution."

The distinction between the two laws is "important," he added. "This Court recently reiterated that our precedents have established that Georgia's constitutional protection of free speech is broader than that provided by the First Amendment... And, it is the protection of the Georgia Constitution that Pin Ups specified in its petition, asserting that the ordinances 'violate the Georgia Constitution' in various ways, including infringing upon the right of free speech; there was no mention of the First Amendment.'"

Judged through the lens of Georgia's constitution, Hines found that "the trial court erred in applying the rational basis test," adding, "the entertainment activity at issue has been recognized as expressive conduct protected under our constitution's free speech clause. The effect of the ordinances is that the time during which Pin Ups's protected activity is conducted is now more limited than it was before the ordinances were enacted, even though the ordinances do not specifically mention the protected conduct and apply to all businesses holding licenses to serve alcohol in the county."

In spite of the fact that the county believes the enhanced ordinance is justified because of alleged secondary effects that require it to control hours of operation, though precisely because the law is "content-neutral regulation that incidentally affects protected expression," Judge Hines determined that the ordinance, "must undergo something more than the rational basis test.

"Such a law," he further cautioned, "can be upheld only 'if it furthers an important government interest; if the government interest is unrelated to the suppression of speech; and if the incidental restriction of speech is no greater than is essential to the furtherance of that interest.'"

With that, Justice Hines reversed and remanded the case back to the lower court for proper adjudication according to the required scrutiny, but not before adding, in a slight admonishment of the trial court's suggestion that monetary damages could resolve any inequities suffered as a result of the forced closure, "[This] case exemplifies the principle that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," and equally, "for violations of the guarantee of free speech found in Georgia's Constitution; monetary damages are inadequate for such an injury."






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Tom Hymes

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