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A half-century-old Pennsylvania statute prohibiting “lewd” entertainment in any venue with a liquor license is an unconstitutionally overbroad restriction on free expression, the 3d U.S. Circuit Court of Appeals has ruled. In Conchatta Inc. v. Miller, No. 05-1803, the federal appeals court struck down the law, saying that it could apply not only to the “topless” bars it directly targets, but also to “ordinary theater and ballet performances, concerts, and other similar forms of entertainment” in liquor-licensed establishments. The challenge was brought by the owners of Club Risque and two of its striptease performers, who “take off their clothes, leaving only G-strings, liquid latex covering their nipples, and high-heeled shoes,” according to court records. Chief Deputy Attorney General John Shellenberger had argued that the Pennsylvania Liquor Control Board does not intend to enforce the statute against legitimate theatrical or concert performances. He said that the state’s courts and agencies have applied the law only to live dancing involving exposure of genitals or involving physical sexual contact between patrons and dancers, so the 3d Circuit should recognize an implied narrowing. In an opinion by U.S. Circuit Judge Julio Fuentes, however, the court concluded that “the current enforcement intentions of the [Board] are of no relevance to our analysis.” Past practice “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 continued, “creates a chilling effect.” Less than a month earlier, 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 181 South Inc. v. Fischer, No. 05-1882, Fuentes wrote that the New Jersey law was neither vague nor overbroad because state officials enforce the law narrowly, as interpreted by the New Jersey appellate courts. The New Jersey tavern’s facial challenge failed because that state’s regulation did not suppress all erotic expression, but only activity taking place in bars. By contrast, 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 for a three-judge panel. The law “apparently has not been applied to prohibit erotic dancing outright in establishments licensed to serve alcohol,” but instead has been interpreted “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. Courts apply that “broad-standing rule,” he noted, because “a statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” 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” is so vague as to violate the First Amendment. “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.

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