O'Brien test in Georgia

2024City of Erie, 529 U.S. at 289 ; see also Turner Broadcasting Systems, Inc. v. F.C.C., 520 U.S. 180, 189 ( 117 SCt 1174 , 137 LE 2d 369) (1997) (describing O’Brien test as “intermediate scrutiny”); Maxim Cabaret, 304 Ga. at 192 (III) (citing O’Brien when describing intermediate scrutiny).

2024Instead, a burden on expression subject to intermediate scrutiny satisfies the fourth prong if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 (citation and punctuation omitted).16 As the Ward Court explained, the fourth prong of the O’Brien test does not require that the challenged law be “the least restrictive or least intrusive means” of “serv[ing] the government’s legitimate, content-neutral interests[.]” Id. at 798 ; see also City of Erie, 529 U.S. at 301-302 (explaining that under the intermediate scruti

2024Notably, however, “Justice Kennedy concurred with the Alameda Books plurality opinion penned by Justice O’Connor because he agreed about the quantum of evidence necessary for the government to prove that a challenged law was motivated by a desire to counteract adverse secondary effects.” Flanigan’s Enterprises v. City of Sandy Springs, 703 Fed.

2024Notably, however, “Justice Kennedy concurred with the Alameda Books plurality opinion penned by Justice O’Connor because he agreed about the quantum of evidence necessary for the government to prove that a challenged law was motivated by a desire to counteract adverse secondary effects.” Flanigan’s Enterprises v. City of Sandy Springs, 703 Fed.

2024See Goldrush II, 267 Ga. at 689-690 (applying both State and federal precedents to determine whether “a statute or ordinance which allegedly impinges upon the constitutionally-guaranteed right of free speech and expression”). 75 has cited no binding authority from the United States Supreme Court (or persuasive authority from other courts) that either provides a governmental interest different from the one asserted by the government when applying the O’Brien test or characterizes a State’s interest in the way the majority opinion does here.

2024See Goldrush II, 267 Ga. at 689-690 (applying both State and federal precedents to determine whether “a statute or ordinance which allegedly impinges upon the constitutionally-guaranteed right of free speech and expression”). 75 has cited no binding authority from the United States Supreme Court (or persuasive authority from other courts) that either provides a governmental interest different from the one asserted by the government when applying the O’Brien test or characterizes a State’s interest in the way the majority opinion does here.

2024Instead, a burden on expression subject to intermediate scrutiny satisfies the fourth prong if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 (citation and punctuation omitted).16 As the Ward Court explained, the fourth prong of the O’Brien test does not require that the challenged law be “the least restrictive or least intrusive means” of “serv[ing] the government’s legitimate, content-neutral interests[.]” Id. at 798 ; see also City of Erie, 529 U.S. at 301-302 (explaining that under the intermediate scruti

2024Instead, a burden on expression subject to intermediate scrutiny satisfies the fourth prong if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799 (citation and punctuation omitted).16 As the Ward Court explained, the fourth prong of the O’Brien test does not require that the challenged law be “the least restrictive or least intrusive means” of “serv[ing] the government’s legitimate, content-neutral interests[.]” Id. at 798 ; see also City of Erie, 529 U.S. at 301-302 (explaining that under the intermediate scruti

2024City of Erie, 529 U.S. at 289 ; see also Turner Broadcasting Systems, Inc. v. F.C.C., 520 U.S. 180, 189 ( 117 SCt 1174 , 137 LE 2d 369) (1997) (describing O’Brien test as “intermediate scrutiny”); Maxim Cabaret, 304 Ga. at 192 (III) (citing O’Brien when describing intermediate scrutiny).

2024City of Erie, 529 U.S. at 289 ; see also Turner Broadcasting Systems, Inc. v. F.C.C., 520 U.S. 180, 189 ( 117 SCt 1174 , 137 LE 2d 369) (1997) (describing O’Brien test as “intermediate scrutiny”); Maxim Cabaret, 304 Ga. at 192 (III) (citing O’Brien when describing intermediate scrutiny).

2024The narrow tailoring is that it is taxing the businesses that are associated with that negative social impact.” 46 ban on public nudity. 22 See Bushco, 225 P3d at 169 (“Since the Tax’s impact on protected expression is even less burdensome than the impact of the public nudity ordinance upheld in Erie, we determine that the Tax satisfies the ‘narrow tailoring’ prong of the O’Brien test.”).

2024The narrow tailoring is that it is taxing the businesses that are associated with that negative social impact.” 46 ban on public nudity. 22 See Bushco, 225 P3d at 169 (“Since the Tax’s impact on protected expression is even less burdensome than the impact of the public nudity ordinance upheld in Erie, we determine that the Tax satisfies the ‘narrow tailoring’ prong of the O’Brien test.”).

2024See, e.g., Gravely, 263 Ga. at 207 (2); Goldrush II, 267 Ga. at 692-693 (5); Maxim Cabaret, 304 Ga. at 193-194 (III).

2024See, e.g., Gravely, 263 Ga. at 207 (2); Goldrush II, 267 Ga. at 692-693 (5); Maxim Cabaret, 304 Ga. at 193-194 (III).

2024Indeed, the Ward Court was considering a lower court’s decision that had understood 16 Ward considered a time, place, manner restriction on speech, but explained, when considering the tailoring requirement, that the requirements for a time, place, or manner restriction that burdens speech are equivalent to that in O’Brien: “[W]e have held that the O’Brien test ‘in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.’” Ward, 491 U.S. at 798 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 ( 104 SCt 3065 , 82 LE2

2024Indeed, the Ward Court was considering a lower court’s decision that had understood 16 Ward considered a time, place, manner restriction on speech, but explained, when considering the tailoring requirement, that the requirements for a time, place, or manner restriction that burdens speech are equivalent to that in O’Brien: “[W]e have held that the O’Brien test ‘in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.’” Ward, 491 U.S. at 798 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 ( 104 SCt 3065 , 82 LE2

2024See Oasis Goodtime Emporium I, 297 Ga. at 526 (3) (c) (2) (concluding that the ordinance prohibiting employees of sexually oriented businesses from appearing fully nude struck “a constitutionally permissible fit between the objective of reducing undesirable secondary effects and the need to protect free speech,” even though the requirement that dancers “wear at least some minimal kind of costume” while dancing imposed “more of a restriction on protected expression than prohibiting alcohol in the vicinity”). 18 Against this backdrop of binding precedent, we conclude that the Assessment complies

2024See Oasis Goodtime Emporium I, 297 Ga. at 526 (3) (c) (2) (concluding that the ordinance prohibiting employees of sexually oriented businesses from appearing fully nude struck “a constitutionally permissible fit between the objective of reducing undesirable secondary effects and the need to protect free speech,” even though the requirement that dancers “wear at least some minimal kind of costume” while dancing imposed “more of a restriction on protected expression than prohibiting alcohol in the vicinity”). 18 Against this backdrop of binding precedent, we conclude that the Assessment complies

2024As discussed above, the O’Brien’s test includes four prongs: “[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 391 U.S. at 377 .

2024As discussed above, the O’Brien’s test includes four prongs: “[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” 391 U.S. at 377.

2024And although the Supreme Court has said, in the context of an equal-protection challenge, that “[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes,” Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547 ( 103 SCt 1997 , 76 LE2d 129) (1983), I am not convinced that this statement means that a legislature’s discretion is so broad that taxes that expressly impose burdens on expression but are not subject to strict scrutiny because they are content-neutral somehow evade judicial 63 Where the majority opinion and I veer even f

2024And although the Supreme Court has said, in the context of an equal-protection challenge, that “[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes,” Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547 ( 103 SCt 1997 , 76 LE2d 129) (1983), I am not convinced that this statement means that a legislature’s discretion is so broad that taxes that expressly impose burdens on expression but are not subject to strict scrutiny because they are content-neutral somehow evade judicial 63 Where the majority opinion and I veer even f