PHILADELPHIA, PA – Philadelphia topless bar Club Risque and two of its dancers have achieved at least a partial victory in their challenge of a Pennsylvania statute prohibiting “lewd, immoral or improper entertainment” at liquor-licensed establishments in the state.In a ruling filed August 15th, a panel of judges from the U.S. Court of Appeals for the Third Circuit unanimously ruled that the language of the statute was overbroad and that “possibility of expanded enforcement creates a chilling effect.”

The case, Conchatta Inc v Miller, was originally filed in 2001, when the plaintiffs filed suit against the Commissioner of the Pennsylvania State Police seeking preliminary and permanent injunctive and declaratory relief, as to enforcement of a Pennsylvania statute that prohibits unspecified “lewd” acts in establishments that are licensed by the State’s Liquor Board to serve alcohol.

Under the challenged portion of the statute, it is unlawful “for any licensee, under any circumstances, to permit in any licensed premises or in any place operated in connection therewith any lewd, immoral or improper entertainment.”

Club Risque and its two employees also sought relief with respect to one of the statute’s implementing regulations, which states in part “A licensee may not permit an employee… or a person engaged directly or indirectly as an entertainer in the licensed establishment or a room or place connected therewith, to be in contact or associate with the patrons in the establishment, room or place for a lewd, immoral, improper or unlawful purpose.”

Writing for the unanimous panel, Judge Julio M. Fuentes wrote that the statute and supporting regulation in question “are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope.”

The Court noted that, under the language of the statute, the law could be applied to a wide range of establishments that serve alcohol, including “plays, musicals, concerts, political satires, comedies, ballets, dramas, singing performances, dancing performances, poetry readings, and art shows throughout Pennsylvania.”

Chief Deputy Attorney General John O.J. Shellenberger had argued on behalf of the State that the Liquor Board had no intention of enforcing the statute against “legitimate” performances like plays and concerts, but the Court appeared to take little comfort in such assurances.

As Fuentes wrote for the court, “the mere fact that an agency does not currently intend to apply a statute in an unconstitutional manner cannot have the effect of an explicit limiting construction.”

“In short,” added Fuentes, “the current enforcement intentions of the Liquor Board are of no relevance to our analysis of the scope of the Challenged Provisions.”

Fuentes also wrote that the Court shared the plaintiffs’ concern over the extremely vague language of the statute.

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

Fuentes noted that Pennsylvania courts have indeed construed “lewd entertainment” to include “fully exposed breasts, genital exposure, or genital touching,” but added that “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 Challenged Provisions are applied to artistic, theatrical, and other non-adult entertainment venues.”

Fuentes contended that the panel didn’t need to predict how “how expansively Pennsylvania courts might construe the prohibition,” because “in light of the broad array of forms of entertainment to which the prohibition is applicable, that even assuming the Challenged Provisions proscribe no more than entertainment involving nudity or genital touching, those Provisions are unconstitutionally overbroad.”

The state, as is often the case in such litigation, argued that the law was enacted and enforced in order to limit alleged “negative secondary effects” that stem from the combination of serving alcohol and providing “lewd” entertainment.

The Court accepted the State’s assertion that statute was “content neutral,” and therefore applied the “intermediate scrutiny standard” laid down by the US Supreme Court in United States v. O’Brien.

As Fuentes noted in the panel’s decision, under the so-called “O’Brien test,” a regulation that restricts expression is constitutional only if it:

1) is within the constitutional power of the Government;
2) furthers an important or substantial governmental interest;
3) the governmental interest is unrelated to the suppression of free expression;
– and –
(4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The panel concluded that the challenged provisions of the Pennsylvania statute are “substantially overbroad under the fourth O’Brien requirement because the asserted government interest is not applicable to a large number of affected establishments,” Fuentes wrote.

The panel’s decision does not shut the door on Pennsylvania’s ability to regulate strip clubs under Liquor Board regulations, as Fuentes made clear in the decision.

“With respect to nude or topless dancing at clubs or bars, an interest in limiting harmful secondary effects may justify the Challenged Provisions,” Fuentes wrote. “With respect to ordinary theater and ballet performances, concerts, and other similar forms of entertainment, however, the Commissioner provides no evidence that the Challenged Provisions prevent harmful secondary effects, and we are exceedingly doubtful that they do.”

Lacking evidence to support the secondary effects argument with respect to such “legitimate” types of performances, “there is no state interest to justify a substantial fraction of the Challenged Provisions’ scope,” wrote Fuentes.

Fuentes also dropped what could be interpreted as a heavy hint to Pennsylvania’s state legislators, writing that the statute’s “language clearly could have been drafted more narrowly to specifically target secondary effects associated with nude or topless dancing.”

With the District Court’s denial in part of Conchatta’s motion for summary judgment now reversed, the case will now continue with, to use Fuentes’ words, “further proceedings consistent with this opinion.”