The ruling is a victory for the owners of Club Risque and two of its striptease dancers who, in their performances, “take off their clothes, leaving only G-strings, liquid latex covering their nipples, and high-heeled shoes,” according to the opinion.

In defending the law, Chief Deputy Attorney General John O.J. Shellenberger argued that the Pennsylvania Liquor Control Board does not intend to enforce the statute against “legitimate” theatrical or concert performances.

But U.S. Circuit Judge Julio M. Fuentes found that the Pennsylvania courts have never limited the statute’s scope and that “the current enforcement intentions of the [LCB] are of no relevance to our analysis.”

This is a win for all of us, really.

Full story from The Legal Intelligencer after the jump.

Risque Move Pays Off

Shannon P. Duffy

08-16-2006

A Philadelphia topless bar has toppled a half-century old Pennsylvania statute that prohibits “lewd” entertainment in any venue that has a liquor license with its victory in a federal appeals court that struck the law down as unconstitutionally overbroad.

In its 16-page opinion in Conchatta Inc. v. Miller, a unanimous three-judge panel found that the statute, as written, violates the First Amendment because it could apply not only to strip clubs but also to “ordinary theater and ballet performances, concerts, and other similar forms of entertainment” in establishments with liquor licenses.

The court concluded that the statute – part of the Pennsylvania Liquor Code – and its accompanying regulations, “are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope.”

The ruling is a victory for the owners of Club Risque and two of its striptease dancers who, in their performances, “take off their clothes, leaving only G-strings, liquid latex covering their nipples, and high-heeled shoes,” according to the opinion.

In defending the law, Chief Deputy Attorney General John O.J. Shellenberger argued that the Pennsylvania Liquor Control Board does not intend to enforce the statute against “legitimate” theatrical or concert performances.

But U.S. Circuit Judge Julio M. Fuentes found that the Pennsylvania courts have never limited the statute’s scope and that “the current enforcement intentions of the [LCB] are of no relevance to our analysis.”

Shellenberger argued that although the Pennsylvania courts have never announced a “narrowing constru ction” of the law, the 3rd Circuit should nonetheless recognize an implied narrowing because the courts and agencies have applied the law only to live dancing involving exposure of genitals or involving physical sexual contact between patrons and dancers.

Fuentes disagreed, saying “the fact that the challenged provisions have been applied exclusively to such entertainment indicates only that such entertainment falls within the scope of the [statute]; it does not define the limits.”

Past practice, Fuentes said, “does not constitute a narrowing construction because it does not bind the enforcement agency, which could, at some point in the future, decide to target a broader range of establishments.”

That “possibility of expanded enforcement,” Fuentes said, “creates a chilling effect.”

Less than a month ago, Fuentes went the other way when he authored the court’s opinion rejecting a challenge to a New Jersey liquor regulation that prohibits “any lewdness or immoral activity” on liquor-licensed premises.

In his July 18 decision in 181 South Inc. v. Fischer, Fuentes found that the New Jersey law is neither vague nor overbroad because state officials enforce the law narrowly as interpreted by the New Jersey appellate courts.

Fuentes noted that the New Jersey Superior Court’s Appellate Division held in its 1985 decision in In re G. & J.K. Enterprises Inc., that “lewd and immoral activity has been considered to take place where ‘the predominant object and natural effect upon the observers-patrons of one portion of the performance was erotic excitation.’”

The New Jersey tavern’s facial challenge failed, Fuentes said, because that state’s regulation does not suppress all erotic expression, but only activity taking place in bars.

“New Jersey’s interest in enacting the regulation is unrelated to the suppression of free expression, because the regulation does not prohibit individuals from pa rticipating in ‘lewd or immoral activity.’ Rather, it only prohibits such activity from taking place on the premises of liquor-licensed establishments,” Fuentes wrote in an opinion joined by Senior U.S. Circuit Judge Jane R. Roth.

By contrast, Fuentes found that the Pennsylvania courts have never limited the scope of the challenged law.

“Although Pennsylvania courts and agencies have addressed the statute – which has been in effect in Pennsylvania since the early 1950s – on numerous occasions, no clear narrowing construction . . . has emerged,” Fuentes wrote in an opinion joined by 3rd Circuit Judge Walter K. Stapleton and visiting 9th Circuit Judge Arthur L. Alarcon.

Fuentes noted that the Pennsylvania Supreme Court has weighed the statute’s constitutionality twice – first in 1959 in In re Tahiti Bar, and again in 2002 in Purple Orchid Inc. v. Pennsylvania State Police.

In the Tahiti Bar decision, Fuentes said, the justices reje cted an as-applied First Amendment challenge brought by a bar that featured erotic dancing, holding that Pennsylvania’s authority to regulate liquor consumption gave it almost limitless power to regulate speech where liquor is consumed.

The Tahiti Bar court also concluded that, taken as a whole, the phrase “lewd, immoral, or improper” was not unconstitutionally vague.

But Fuentes noted that the court never specifically construed the challenged terms, instead upholding a lower court’s finding that the performance in the plaintiffs bar was “lewd or obscene as well as immoral under any definition of these terms.”

In Purple Orchid, Fuentes said, the Pennsylvania Supreme Court “disavowed its analysis in Tahiti Bar,” noting that, under recent United States Supreme Court precedent, a state does not have complete authority over the regulation of expression in liquor licensee establishments.

But Fuentes said the Purple Orchid court nonetheless rejected a First Amendment challenge “as applied to a club featuring erotic dancing.”

In doing so, Fuentes said, the Pennsylvania justices “did not adopt a limiting construction of the statute.”

Instead, he said, the Purple Orchid court found that the law “apparently has not been applied to prohibit erotic dancing outright in establishments licensed to serve alcohol,” but instead “has been interpreted by enforcement officials as requiring the dancers to cover themselves, at a minimum, with what are commonly known as ‘pasties’ and a ‘G-string.’”

Since the Pennsylvania courts have never narrowed the law’s scope, Fuentes said, Club Risque was free to wage a facial challenge that asserted the law is overbroad – even if Club Risque’s own conduct would not be protected.

In such constitutional challenges, Fuentes said, the U.S. Supreme Court has held that a showing that a law punishes a “substantial” amount of protected free speech – in relation to the statute’s “plainly legitimate sweep” – is enough to invalidate all enforcement of that law.

As a result, Fuentes said, a litigant such as Club Risque may challenge a statute as substantially overbroad “even though the conduct of the litigant is clearly unprotected and could be proscribed by a law drawn with the requisite specificity.”

Courts apply that “broad-standing rule,” Fuentes said, because “a statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”

Under that rule, Fuentes said, Club Risque “may assert the rights of any liquor licensees subject to the [statute].”

Turning to the merits of the claim, Fuentes agreed with Club Risque’s lawyers – J. Michael Murray, Steven D. Shafron and Raymond Vasvari of Berkman Gordon Murray & DeVan in Cleveland – that the statute’s use of the term “lewd entertainment” violates the First Amendment.

“As for what exp ression falls within the prohibition on ‘lewd entertainment,’ we, like the plaintiffs, find this to be a difficult question to answer,” Fuentes wrote.

The Pennsylvania courts, he said, “have construed ‘lewd entertainment’ to include entertainment involving fully exposed breasts, genital exposure, or genital touching.”

But Fuentes said the statutory definition “has not been limited to include only entertainment with those characteristics, and this exacerbates the chilling effect on a wide range of First Amendment protected expression when the [statute is] applied to artistic, theatrical, and other non-adult entertainment venues.”

Fuentes said he would not predict “how expansively the Pennsylvania courts might construe the prohibition.”

Instead, he said, “we conclude, in light of the broad array of forms of entertainment to which the prohibition is applicable, that even assuming the [statute and its regulations] proscribe no more than entertainment inv olving nudity or genital touching, those provisions are unconstitutionally overbroad.”

Shellenberger insisted that the law was enacted to limit “negative secondary effects” resulting from the combination of lewd entertainment and consumption of alcohol.

Fuentes agreed that such a law is considered “content-neutral,” but found that Pennsylvania’s law failed the four-prong test announced by the U.S. Supreme Court in its 1968 decision in United States v. O’Brien.

Under the fourth prong of the O’Brien test, Fuentes said, a law passes constitutional muster only if “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

Fuentes found that the law’s interest in limiting harmful secondary effects “may be justified” for nude or topless dancing at clubs or bars.

But Fuentes said there was no evidence presented that it was justified for “ordinary theater and ball et performances, concerts, and other similar forms of entertainment,” and that the court was “exceedingly doubtful” that any such evidence exists.

In a remark that could be read as a direct message to the Pennsylvania General Assembly, Fuentes wrote: “The statutory language clearly could have been drafted more narrowly to specifically target secondary effects associated with nude or topless dancing.”

(Copies of the 16-page opinion in Conchatta Inc. v. Miller, PICS No. 06-1106, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

This entry was posted on Wednesday, August 16th, 2006 at 12:32 pm.