Preservation Overrides the First Amendment

By Karen Federman Henry

 The First Amendment to the U.S. Constitution protects a tapestry of expression in our society, including speech, association, art, dance, attire, and music. Few exceptions exist, and when they do they are extreme—obscenity and incitement to riot are never protected, although the line does not always appear to be bright and clear. The Court of Special Appeals recently reminded us of a much simpler exception to the protection in Thana v. Board of License Commissioners for Charles County, Ct. Spec. App., Sept. Term 2014, No. 1981 (January 29, 2016): when the First Amendment issue is not preserved for appellate review.

The case arose from a consent order issued by a local liquor board that precluded the licensee, Thai Palace, from offering “go-go” entertainment. (The go-go music genre originated in Washington, D.C., during the 1960s and 1970s and includes a blend of funk, rhythm and blues, and hip-hop.) Restrictions on licensees are not unusual—liquor boards often include conditions that allow or restrict live performances where alcohol is served, and some require that a minimum amount of food items are available to patrons. Licensees typically accept the conditions as a small concession to have a liquor license for their establishments.

In this case, the licensee overlooked the restriction and played go-go music for its patrons. The liquor board held an enforcement hearing and, based on the violation of the consent order, revoked Thai Palace’s liquor license. The revocation precluded both the serving of alcohol and any live performances. No constitutional objections were presented during the administrative hearing.

Not surprisingly, the licensee petitioned for judicial review in the Circuit Court for Charles County. At this point, Thai Palace argued that the consent-order restrictions violated the Due Process and Equal Protection Clauses of the 14th Amendment, but did not mention the First Amendment. The circuit court affirmed the revocation of the license, and an appeal to the Court of Special Appeals followed.

Interestingly, the issues from the circuit court disappeared and three new issues were presented. The liquor board argued that the order had expired, so the appeal should be dismissed as moot. Thai Palace raised the standard issue of whether substantial evidence existed in the record to support the liquor board’s finding that the establishment had violated the consent order.  The licensee also sought to inject a First Amendment analysis into the matter and argued that the conditions on its live performances based on the type of music played violated its free-speech rights.

The Court easily rejected the mootness argument and reviewed the evidence in the record to determine whether it supported the board’s conclusions. The administrative record contained flyers and Internet advertisements prepared and approved by Thai Palace, and witnesses testified that they had observed go-go entertainment at the establishment on multiple occasions. In light of the substantial evidence in the record supporting the board’s decision, the Court affirmed the board and the circuit court.

The First Amendment issue seemingly would have posed the greatest threat to the integrity of the liquor board’s decision to revoke the license. Basic First Amendment principles require that regulations on speech may only restrict the time, place, and manner of individual expression, and cannot distinguish types of content. Yet, Thai Palace was precluded from providing entertainment involving a specific type of music—not music or live performances in general.

Ordinarily, this would violate the content-neutral standard for speech limitations. While the Court acknowledged this basic concept, the decision hinged on the dictates of the appellate rules, which caution the appellate courts not to decide any issue unless it “plainly appears by the record to have been raised in or decided by the trial court.” Md. Rule 8-131. Under this principle, even raising the two other constitutional issues in the circuit court failed to preserve the First Amendment issue that was raised for the first time in the Court of Special Appeals. As a result, the Court reiterated that the issue needed to be raised in the first forum: before the liquor board.  In fact, the Court noted that the licensee should have challenged the restriction when it was imposed as a condition of the consent order—well before the enforcement action that reached the appellate court in this instance.

While it remains to be seen whether the case proceeds to the Court of Appeals and is altered in any way, it presents a strong reminder of the need to evaluate when to note an appeal and the ongoing need to preserve all issues for appellate review. Often, a case evolves and not all aspects may be apparent at the outset. This Blog periodically emphasizes the need to preserve issues for appeal along with suggestions on how to do so. As this case highlights, there are dangers in not fully evaluating a case at the earliest stage possible in order to ensure preservation of all appropriate issues.