Twenty-First Amendment, Section 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.

The Supreme Court has held that the Twenty-First Amendment “does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment” that has been incorporated against the states through the Fourteenth Amendment’s Due Process Clause.1 The Court’s jurisprudence on the relationship between the First and Twenty-First Amendments evolved during the late twentieth century. Initially, in California v. LaRue, the Court held that the states could restrict sexually explicit entertainment in establishments licensed to sell liquor for on-premises consumption, even if such entertainment might otherwise merit First Amendment protection.2 The Court suggested that such state restrictions were entitled to a “presumption” of validity under the Twenty-First Amendment.3 Later cases clarified that a state’s Twenty-First Amendment interests in regulating liquor sales could “outweigh” First Amendment interests.4

However, in a 1996 decision, 44 Liquormart, Inc. v. Rhode Island, the Supreme Court partially overruled LaRue, determining that states cannot rely on their Twenty-First Amendment powers to infringe on speech protected by the First Amendment.5 Nonetheless, the Court suggested that the states could potentially exercise their general police powers to “prohibit the sale of alcoholic beverages in inappropriate locations” even if such a ban might incidentally restrict certain First Amendment-protected activity, such as topless dancing, in establishments licensed to sell alcoholic beverages.6

The Supreme Court also confirmed in 44 Liquormart that states must comply with the First Amendment when regulating alcoholic beverage advertising. The Court invalidated Rhode Island laws that completely prohibited public dissemination of accurate information about retail liquor prices.7 The Court rejected the state’s attempt to rely on the Twenty-First Amendment to prohibit commercial speech protected by the First Amendment,8 writing that Rhode Island had “failed to carry its heavy burden of justifying its complete ban on price advertising.” 9

In addition to confirming that the Twenty-First Amendment does not qualify First Amendment guarantees of freedom of expression, the Supreme Court has held that a state “may not exercise its power under the Twenty-First Amendment in a way which impinges upon the Establishment Clause of the First Amendment.” 10 In Larkin v. Grendel’s Den, the Court struck down, as a violation of the Establishment Clause, a Massachusetts law that gave “churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius.” 11 According to the Court, the law had the impermissible effect of advancing religion: the veto power could be “employed for explicitly religious goals” and the appearance of a “joint exercise of legislative authority by Church and State provide[d] a significant symbolic benefit to religion.” 12 The law also “enmeshe[d] churches in the exercise of substantial governmental powers contrary to [the Court’s] consistent interpretation of the Establishment Clause.” 13 According to the Court, “few entanglements [between Church and State] could be more offensive” than delegating “discretionary governmental powers” to religious groups.14

Footnotes

1

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 514–16 (1996); see also U.S. Const. amend. I ( “Congress shall make no law respecting an establishment of religion . . . or abridging the freedom of speech . . .” ); Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the First Amendment’s free speech protections against the states). For more on the Court’s First Amendment jurisprudence generally, see .

2

California v. LaRue, 409 U.S. 109, 114–19 (1972) (sustaining the facial constitutionality of state liquor control regulations barring a lengthy list of actual or simulated sexual activities, and motion picture portrayals of such activities, in establishments licensed to sell liquor by the drink).

3

Id. The Supreme Court suggested that California could restrict the sexually explicit performances at issue in LaRue as conduct that lacked a significant communicative element. Id. at 118 (stating that “the sort of bacchanlian revelries” the liquor regulations sought to prevent were not “the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater” ).

4

Doran v. Salem Inn, Inc., 422 U.S. 922, 932–34 (1975) (describing LaRue as holding 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 part of its liquor license control program” ). See also Newport v. Iacobucci, 479 U.S. 92, 92–93, 96–97 (1986) (upholding a local ordinance banning nude dancing in bars as authorized under a state’s Twenty-First Amendment powers, which the Court found had been delegated, in part, to the local government and stating that “the interest in maintaining order outweighs the interest in free expression by dancing nude” ); N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 714–15, 718 (1981) (upholding against a First Amendment challenge the application of a New York law to prohibit topless dancing in establishments licensed to sell liquor for on-premises consumption, citing the state’s power under the Twenty-First Amendment to regulate the “times, places, and circumstances under which liquor may be sold” and the New York legislature’s “common sense” notion that “any form of nudity coupled with alcohol in a public place begets undesirable behavior” ) (citation omitted).

5

44 Liquormart, Inc., 517 U.S. at 515–16, overruling in part LaRue, 409 U.S. at 114–19 and Bellanca, 452 U.S. at 718.

6

Id.

7

Id. at 514–16.

8

Id.

9

Id. at 516. For more on the Court’s decision in 44 Liquormart, Inc., see .

10

Larkin v. Grendel’s Den, 459 U.S. 116, 122 n.5 (1982). The Establishment Clause forbids the government from making any law “respecting an establishment of religion.” U.S. Const. amend. I.

11

Larkin, 459 U.S. at 117, 120.

12

Id. at 125–26.

13

Id. at 126.

14

Id. at 127 (citing Lemon v. Kurtzman, 403 U.S. 602, 623 (1971)). See also ; . Although the Supreme Court has not specifically overruled Larkin, the Court has “abandoned” the Establishment Clause analysis it applied in Larkin, known as the Lemon test, in favor of examining “historical practices and understandings” when evaluating the merits of Establishment Clause challenges. Kennedy v. Bremerton School Dist., No. 21-418, slip op. at 22–23 (U.S. June 27, 2022); see generally . It is unclear whether this analytical approach would have altered Larkin’s outcome.