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The state police have a right under the U.S. Constitution to prohibit establishments licensed to serve liquor from allowing strippers to perform with apparently bare breasts, the Pennsylvania Supreme Court has ruled. The conduct can be seen as violating � 4-493(10) of the Liquor Code, which prohibits lewd, immoral or improper conduct. The statute passes muster under the four-prong test created by the U.S. Supreme Court in United States v. O’Brien, from 1968, the court held. The state’s justices ruled unanimously in Purple Orchid Inc. v. Pennsylvania State Police, although Justice Sandra Schultz Newman did not participate in the case. It is the second time they have visited the issue of nude dancing in less than a month. In December’s Pap’s A.M. v. City of Erie, a majority found that an Erie ordinance banning nude dancing violated the state constitution. But the justices in Purple Orchid were quick to point out that their decision had nothing to do with the state constitution, as the defendants had waived that issue. Writing for the court, Justice Ronald D. Castille said the Liquor Code statute did not violate the defendant’s right to expression under the First Amendment of the U.S. Constitution. “In summary, our review of the U.S. Supreme Court’s governing precedent under the First Amendment leads us to conclude that the statute here, as applied, is a content-neutral restriction on expressive conduct which must be subjected to intermediate scrutiny under the four-factor test deriving from United States v. O’Brien.” According to the opinion, a state police officer witnessed three female dancers at the Purple Orchid performing with apparently bare breasts. Their nipples were covered with liquid latex, but it was clear. The officer cited the club with allowing lewd, immoral or improper entertainment on its premises, in violation of � 4-493(10). On appeal, an administrative law judge decided that exposing breasts with clear latex covering the nipples was the same as exposing bare breasts and imposed a $1,000 fine. The Commonwealth Court affirmed on appeal, rejecting Purple Orchid’s claim that the code violates the First Amendment. The Pennsylvania Supreme Court accepted Purple Orchid’s petition for allowance of appeal on the constitutional question it presented. The state supreme court has analyzed a nearly identical case in the past, Castille said, but that was a long time ago. In the 1959 case, In Re Tahiti Bar Inc., it shot down an argument that � 493 was constitutionally vague, finding that liquor license actions do not have to be interpreted as strictly as criminal statutes because they are civil and administrative in nature. However, Castille said the U.S. Supreme Court had decided several questions since Tahiti Bar, so the justices had to predict how the federal high court would rule on the issue today. Looking at the U.S. court’s 1996 decision in 44 Liquormart v. Rhode Island, Castille said the court could tell that the Tahiti Bar case was “problematic.” “Specifically, this court’s conclusion in In Re Tahiti Bar that the commonwealth’s ‘virtually … absolute control’ over the business of dispensing alcohol ‘compels’ the conclusion that Section 4-493(10) does not offend the First Amendment was expressly rejected by 44 Liquormart,” Castille said, “which held that the states’ substantial regulatory power over the delivery or use of intoxicating beverages within their borders pursuant to the Twenty-first Amendment ‘does not license the states to ignore their obligations under other provisions of the Constitution,’ including the First Amendment.” Therefore, Castille said, it was proper for the court to make a First Amendment analysis. Nude dancing is a form of expressive conduct somewhat protected by the First Amendment, he said. A decision on what level of scrutiny applies to a law allegedly infringing on that conduct depends on whether the law is content-neutral or content-based. Purple Orchid based its argument that � 4-493(10)’s stated purpose of preventing “lewd, immoral or improper entertainment” had an unmentioned purpose of negatively impacting the erotic message of the dance was based on the Pennsylvania Supreme Court’s 1998 decision in Pap’s A.M. v. City of Erie. Purple Orchid acknowledged that the U.S. Supreme Court reversed the Pap’s decision on that same point but said that did not affect the argument that � 4-493(10) is content-based. The state police argued that the statute is content-neutral and aimed at decreasing the negative secondary effects of nude dancing. Castille said the high court agreed. 44 Liquormart held that entirely separate from the 21st Amendment, the state “has ample power to prohibit the sale of alcohol in inappropriate locations,” as well as police power to restrict “bacchanalian revelries.” The high court made a very similar decision in the 1972 case California v. LaRue, in which it found that regulations from the California Department of Alcoholic Beverage Control banning nude dancing at establishments licensed to serve alcohol did not violate the First Amendment. Considering those two decisions, Castille said, the high court agrees with the Commonwealth Court that the less-stringent approach was proper. As Castille explained, � 1-104 of the Liquor Code states that the code is “an exercise in the police power of the commonwealth” for, among other factors, the public welfare and morals of the people of Pennsylvania. Castille said that statement implied that � 4-493(10) “is aimed at addressing perceived harmful secondary effects concomitant with nude dancing rather than at suppressing the expressive message of nude dancing.” Also, he said, other subsections of � 4-493 do such things as prohibit prostitutes and known criminals from frequenting places that are licensed to serve alcohol. Subsection 10 can be looked at as a companion to those subsections, Castille said, also aimed toward preventing “social ills.” Therefore, he said, it was clear that one of the purposes of � 4-493(10) was to address the negative secondary effects of nude dancing in establishments licensed to serve alcohol. The four-prong test of the less-stringent standard that was then to be used was outlined in O’Brien. Turning to actual application of the O’Brien standard, Castille said the high court believed its federal counterpart would find that each factor of the test was satisfied. As for the first factor, whether the government regulation falls within the constitutional power of the government to enact that regulation, Castille again cited the statement in 44 Liquormart that the states have “ample” power to regulate the conduct of those who sell alcohol and said, therefore, the commonwealth unquestionably had the power to regulate nude dancing in such establishments. The second factor is whether the regulation furthers an important or substantial governmental interest. Castille said the state police had not produced any evidence that nude dancing in establishments licensed to serve alcohol actually had negative secondary effects or that requiring dancers to wear G-strings and pasties would have an impact on any negative secondary effects. However, the U.S. Supreme Court’s reversal in Pap’s seems to indicate that such evidence is unnecessary, Castille said, although the federal justices’ stance on the issue is far from clear. He cited a statement from the plurality opinion in Pap’s that “in terms of demonstrating that such secondary negative effects pose a threat, the city need not ‘conduct new studies or produce evidence independent of that already generated by other cities’ to demonstrate the problems of secondary effects,” so long as that evidence already generated is reasonably relevant. The court would find itself in “peril” if it deviated from that interpretation, Castille said, so the majority found that the second prong was met in Purple Orchid’s case. The high court found that the third and fourth prongs — that the government interest is unrelated to the suppression of free expression and that the restriction on free expression is no more than what is essential for the furtherance of the government interest — were also satisfied. As to the third prong, Castille again cited the Liquor Code’s stated purpose of protecting the morals of the people of the commonwealth. And regarding the fourth prong, the majority noted that � 4-493(10) did not completely prevent the dancers from expressing themselves. “Section 4-493(10) does not bar nude or erotic dancing in Pennsylvania outright: It applies only in licensed liquor establishments. Moreover, even in licensed liquor establishments, the dancers at Purple Orchid and other similar establishments remain free to perform wearing pasties and G-strings,” Castille said. “All that has been muted by this statute is that portion of the erotic expression that occurs ‘when the last stitch is dropped.’ Under the U.S. Supreme Court’s jurisprudence, then, we must deem the restriction as leaving ample First Amendment capacity for the performers to convey their erotic message.” Michael S. Durst of Herring & Herring in Philadelphia represented Purple Orchid. Thomas M. Ballaron of the Office of Chief Counsel for the state police in Harrisburg, Pa., and Francis X. O’Brien of the Liquor Control Board argued for the state police.

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