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Lap dancing in bars is not protected by the First Amendment, the 3d U.S. Circuit Court of Appeals has ruled, rejecting a New Jersey tavern’s challenge of the constitutionality of a state regulation that prohibits “any lewdness or immoral activity” on liquor-licensed premises. Lawyers for the Moulin Rouge bar in Atlantic City argued that the regulation was vague and overbroad, and that it should not be applied to erotic dancers who wear bikini tops and bottoms. According to court records, the bar was hit with fines when police saw dancers rubbing their breasts and groins while onstage and straddling a patron to simulate sexual intercourse. The bar’s lawyers argued that a go-go dancer’s erotic movements are entitled to First Amendment protection, and that the regulation is so broadly worded that it would prohibit a clothed dancer from thrusting her pelvis or moving a finger in and out of her mouth. U.S. District Judge Robert B. Kugler of the District of New Jersey found that the regulation passed constitutional muster because it focused solely on activity in establishments that serve alcohol. “The issue here is not whether a prohibition of ‘simulated explicit sexual gestures’ . . . would be overbroad, because that’s not how [the regulation] is worded. Rather, the issue is whether that regulation’s prohibition of ‘lewd or immoral activity’ in connection with liquor licenses is overbroad,” Kugler ruled in February 2005. Affirming, the 3d Circuit rejected the bar’s argument that decisions from the U.S. Supreme Court show that the regulation is unconstitutional. 3d Circuit Judge Julio M. Fuentes said the New Jersey Division of Alcoholic Beverage Control has the power to regulate the sale of alcoholic beverages at “inappropriate locations,” and that the challenged regulation falls under the state’s “general police power.” 181 South Inc. v. Fischer, No. 05-1882. Fuentes said that it is “well established” that a state’s interest in curtailing the “unacceptable social behavior” that can accompany adult entertainment is “important and substantial.” The regulation is neither vague nor overbroad, Fuentes concluded, because state officials enforce the law narrowly as interpreted by the New Jersey appellate courts. Nonexpressive conduct In its 1985 decision in In re G. & J.K. Enterprises Inc., the intermediate New Jersey Appellate Division held 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.’ “ Fuentes said that the bar’s facial challenge failed because the regulation did 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 participating in ‘lewd or immoral activity.’ Rather, it only prohibits such activity from taking place on the premises of liquor-licensed establishments,” Fuentes wrote. The opinion was joined by 3d Circuit Judge Jane R. Roth. As a result, Fuentes said, the regulation “is not a restriction of erotic expression, but a prohibition of non-expressive conduct (i.e., serving and consuming alcohol) on premises where such expression takes place.” Fuentes said that the regulation’s restriction on First Amendment freedoms “is no greater than is essential to the furtherance of that interest. Indeed, it is tailored precisely to pursue its stated purpose: the reduction of the ‘unacceptable social behavior’ that so often arises in conjunction with the combination of erotic entertainment and alcohol.”

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