California v. LaRue

PETITIONER: California, et al.
RESPONDENT: Robert LaRue, et al.
LOCATION: Department of Alcoholic Beverage Control

DOCKET NO.: 71-36
DECIDED BY: Burger Court (1972-1975)

CITATION: 409 US 109 (1972)
ARGUED: Oct 10, 1972
DECIDED: Dec 05, 1972

Harrison W. Hertzberg -
Kenneth Scholtz -
L. Stephen Porter - for appellants

Facts of the case

After receiving reports of the type of sexual activity occurring on the premises of licensed liquor sellers, the California Department of Alcoholic Beverage Control promulgated a series of regulations pertaining to the conduct on such licensed premises. The appellees, a group of holders of various liquor licenses, sought discretionary review of the new regulations. The district court held that the regulations unconstitutionally limited freedom of expression.


Does California’s prohibition of certain sexual acts on premises where liquor is sold violate the First and Fourteenth Amendments?

Media for California v. LaRue

Audio Transcription for Oral Argument - October 10, 1972 in California v. LaRue

Warren E. Burger:

-- now in number 71-36, California against LaRue.

Mr. Porter.

L. Stephen Porter:

Mr. Chief Justice and may please the Court.

This case involves two regulations of the California Department of Alcoholic Beverage Control which provide that a California state on sale alcoholic beverage license may not be held on premises for the sale and consumption of alcohol where certain sexually oriented acts, conducts or visual displays are employed on the premises.

The regulations were enacted after legislative hearings before the California department of Alcoholic beverage Control.

Now it was developed that these hearings, first that alcoholic access would be present upon the control centers of the brain which normally inhibit the so-called base behaviors and that persons consuming alcohol may and do engage in acts and conduct which they would not engage in, if not drinking.

Secondly, it was developed that persons under the influence of alcohol are more likely to be sexually stimulated by viewing sexual material, sexual conduct and acts and that they are more likely to engage in sexual activity or conduct on premises which afford or offer such sexually oriented entertainment.

Thirdly --

Potter Stewart:

How does this litigation arise, is it an action for a declaratory judgment and an injunction by the --

L. Stephen Porter:

By certain licensees, attack both in the State and the Federal courts in California the regulations on the basis that they were invalid is infringing upon the First Amendment rights that the --

Potter Stewart:

The licenses were the plaintiffs though?

L. Stephen Porter:

Licensees and certain employees, dancers and some of the licensees were the plaintiffs.

Potter Stewart:

Asking for the declaratory judgment that these regulations are invalid?

L. Stephen Porter:

Invalid and to enjoin.

Potter Stewart:

And to enjoin their enforcement?

L. Stephen Porter:

That's correct.

Potter Stewart:

Has there been any license revocation proceedings against any of these plaintiffs?

L. Stephen Porter:

The regulations become effective in number of days after their promulgation and enactment and placement in the California in the administrative code.

Before their effective date, these actions were brought, both in the State Courts and in the Federal District Court.

The Federal District Court in Los Angeles withheld the action pending action by the state courts.

The California State courts refused to hear the cases, refused to enjoin the regulation.

Potter Stewart:

I wondered if there were Younger problem in this case, Younger against Harris, are you familiar with that case and it's companions?

L. Stephen Porter:

Not completely, there was no -- I am not familiar with it.

William J. Brennan, Jr.:

Well you said the State Courts refused to what render either a declaratory injunction or a declaratory judgment or injunction relief?

L. Stephen Porter:

Yes, the action for declaratory relief and injunction was brought in the State courts.

State courts refused, the plaintiffs went through the California Court of Appeals.

William J. Brennan, Jr.:

When you say refuse, you mean dismissed the proceedings?

L. Stephen Porter:

These were on petitions.

Regulations and/or decisions of the California Department of Alcoholic Beverage Control are reviewable either by petitions for writ to review in the California Appellate Courts or under a type of hybrid writ of mandate proceeding, which would be similar to declaratory relief to check the validity of the regulations, but it is discretionary with the California Appellate Courts whether or not they entertain.

William J. Brennan, Jr.:

And discretion was exercised against entertaining the proceedings?