Carandola v. Bason ( 2002 )

Filed: October 17, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1726
(CA-01-115)
Giovani Carandola, Limited, etc., et al.,
Plaintiffs - Appellees,
versus
George Bason, etc., et al.,
Defendants - Appellants.
O R D E R
The court amends its opinion filed August 30, 2002, as
follows:
On page 8, footnote 1 -- the second sentence of the footnote
is amended to read: “On appeal, Carandola does not argue that N.C.
Gen. Stat. § 18B-1005(a)(1), (2), (3), or (6) (prohibiting
fighting, disorderly conduct, gambling, and the like, and
authorizing the Commission to write certain rules) violate the
Constitution, and we see no reason to hold that they do.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
Order granting limited rehearing
(for purpose of revising opinion)
filed 10/17/02
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
GIOVANI CARANDOLA, LIMITED, a
North Carolina Corporation; JANEL
D. RALPH,
Plaintiffs-Appellees,
v.
GEORGE BASON, in his official
capacity as Chairman of the North
Carolina Alcohol Beverage Control
Commission; HOWARD MCGLOHON,
in his official capacity as Member
of the North Carolina Alcohol
Beverage Control Commission;
RICKY WRIGHT, in his official No. 01-1726
capacity as Member of the North
Carolina Alcohol Beverage Control
Commission; BRYAN BEATTY, in his
official capacity as Secretary of the
North Carolina Department of
Crime Control and Public Safety,
Defendants-Appellants,
and
GREENSBORO ALCOHOL BEVERAGE
CONTROL BOARD, a political
subdivision of the State of North
Carolina,
Defendant.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CA-01-115)
Argued: December 4, 2001
Decided: August 30, 2002
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
____________________________________________________________
Affirmed in part and vacated in part by published opinion. Judge
Motz wrote the majority opinion, in which Judge Traxler joined.
Judge Niemeyer wrote a dissenting opinion.
____________________________________________________________
COUNSEL
ARGUED: David Roy Blackwell, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants. J. Michael Murray, BERKMAN, GORDON,
MURRAY & DEVAN, Cleveland, Ohio, for Appellees. ON BRIEF:
Roy Cooper, North Carolina Attorney General, Amy L. Yonowitz,
Assistant Attorney General, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellants. Steven D.
Shafron, BERKMAN, GORDON, MURRAY & DEVAN, Cleveland,
Ohio, for Appellees.
____________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
In this case, the North Carolina Alcoholic Beverage Control Com-
mission (the Commission) appeals from the district court's order pre-
liminarily enjoining it from enforcing certain state restrictions on
nudity and other conduct, pending the outcome of a trial. For the rea-
sons stated herein, we affirm in part and vacate in part.
I.
Giovani Carandola, Ltd. operates Christie's Cabaret, a nude danc-
ing establishment in Greensboro, North Carolina, which holds permits
2
issued by the Commission to sell malt beverages, fortified wines,
unfortified wine, and mixed beverages. In November 2000, an agent
of the Commission visited Christie's and observed three Carandola
employees engaging in various kinds of exotic dancing. The agent
concluded that the dancers' conduct violated N.C. Gen. Stat. § 18B-
1005(a) (1995) and an administrative rule promulgated pursuant to
that statute.
In pertinent part, § 18B-1005 provides:
(a) Certain Conduct. — It shall be unlawful for a permittee
or his agent or employee to knowingly allow any of the fol-
lowing kinds of conduct to occur on his licensed premises:
(1) Any violation of this Chapter;
(2) Any fighting or other disorderly conduct that
can be prevented without undue danger to the per-
mittee, his employees or patrons;
(3) Any violation of the controlled substances,
gambling, or prostitution statutes, or any other
unlawful acts;
(4) Any conduct or entertainment by any person
whose private parts are exposed or who is wearing
transparent clothing that reveals the private parts;
(5) Any entertainment that includes or simulates
sexual intercourse or any other sexual act; or
(6) Any other lewd or obscene entertainment or
conduct, as defined by the rules of the Commis-
sion.
Pursuant to subsection (a)(6) of the statute, the Commission has
adopted N.C. Admin. Code tit. 4, r. 2S.0216 (Apr. 2002) (the Rule),
which provides:
3
(a) No permittee or his employee shall allow any person to
perform acts of or acts that simulate:
(1) sexual intercourse, masturbation, sodomy, bes-
tiality, oral copulation, flagellation, or any sexual
acts that are prohibited by law;
(2) the touching, caressing or fondling of the
breasts, buttocks, anus, vulva or genitals;
(3) the display of the pubic hair, anus, vulva or
genitals.
(b) No permittee or his employee shall allow any person to
use artificial devices or inanimate objects to depict any of
the prohibited activities described in Paragraph (a) of this
rule.
(c) No permittee or his employee shall allow any person
who exposes to public view any portion of his pubic hair,
vulva, genitals, or anus to remain in or upon the licensed
premises.
On December 6, 2000, the Commission sent Carandola a letter,
stating, in part, that its employees had been observed (1) "simulat[ing]
sexual intercourse" and "simulat[ing] masturbation" on the licensed
premises in violation of § 18B-1005(a)(5) and Rule 2S.0216(a)(1);
and (2) "engaging in acts of touching, caressing or fondling of the
breasts" in violation of Rule § 25.0216(a)(2). The Commission asked
Carandola to stipulate to these violations and to accept as a penalty
either a 30-day suspension of its permits or a 15-day suspension and
a $3,000 fine.
Instead, Carandola, joined by Janel D. Ralph, a dancer at the club
(hereinafter collectively, Carandola), filed suit in federal court. Caran-
dola asked the district court to declare § 18B-1005 and Rule 2S.0216
unconstitutional, both facially and as applied, and, in the interim, to
issue a preliminary injunction forbidding enforcement of these provi-
sions against them. After an evidentiary hearing, the district court
4
issued a preliminary injunction. Giovani Carandola, Ltd. v. Bason,
147 F. Supp. 2d 383, 393-395 (M.D.N.C. 2001). The Commission
noted a timely appeal. We heard oral argument and then held this case
in abeyance awaiting the Supreme Court's decision in City of Los
Angeles v. Alameda Books, Inc., ___ U.S. ___, 122 S. Ct. 1728(2002).
We review a district court's grant or denial of a preliminary injunc-
tion for abuse of discretion. Doran v. Salem Inn, Inc., 422 U.S. 922,
932 (1975). We accept the court's findings of fact absent clear error,
but review its legal conclusions de novo. North Carolina v. City of
Virginia Beach, 951 F.2d 596, 601 (4th Cir. 1992).
In deciding whether to issue a preliminary injunction, a court must
consider "(1) the likelihood of irreparable harm to the plaintiff if the
preliminary injunction is denied, (2) the likelihood of harm to the
defendant if the requested relief is granted, (3) the likelihood that the
plaintiff will succeed on the merits, and (4) the public interest." Direx
Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.
1992). In this case, as the district court recognized, the "irreparable
harm" that Carandola alleged is "inseparably linked to [its] claim of
violation of First Amendment rights[.]" Carandola, 147 F. Supp. 2d
at 387. Determination of irreparable harm thus requires analysis of
Carandola's likelihood of success on the merits, and we turn to this
question first.
II.
The First Amendment bars the government from "abridging the
freedom of speech" — that is, generally, "from dictating what we see
or read or speak or hear." U.S. Const. amend. I; Ashcroft v. Free
Speech Coalition, ___ U.S. ___, 122 S. Ct. 1389, 1399 (2002). The
Constitution protects not just "political and ideological speech," but
also "live entertainment," including "nude dancing" and other perfor-
mances involving nudity or other sexual elements. Schad v. Borough
of Mt. Ephraim, 452 U.S. 61, 65-66 (1981) (citations omitted); see
also Ashcroft, 122 S. Ct. at 1400-01. Although some citizens undoubt-
edly find such performances offensive, preservation of the critical
right of free speech, one of the Constitution's most "fundamental per-
sonal rights and liberties," Gitlow v. New York, 268 U.S. 652, 666
5
(1925) (internal quotation marks omitted), requires the protection of
expression that some may dislike or even despise. See Reno v. ACLU,
521 U.S. 844, 874 (1997) ("In evaluating the free speech rights of
adults, we have made it perfectly clear that [s]exual expression which
is indecent but not obscene is protected by the First Amendment."
(internal quotation marks and citation omitted)); Carey v. Population
Servs. Int'l, 431 U.S. 678, 701 (1977) ("[T]he fact that protected
speech may be offensive to some does not justify its suppression.").
Keeping in mind the "preferred position" of the First Amendment
free speech right, Murdock v. Pennsylvania, 319 U.S. 105, 115
(1943), and the scope of its protection, we address the two sets of
legal principles that guide our analysis of the challenged restrictions.
The first involves the nature of Carandola's overbreadth challenge
and the second concerns the appropriate level of First Amendment
scrutiny.
A.
Carandola principally challenges the North Carolina restrictions as
overbroad. According to Carandola, these restrictions, without justifi-
cation, burden "vast amounts of constitutionally protected expression"
— including dance, theater, political satire, comedy, and even perfor-
mances with fully clothed performers in which sexual content is non-
existent or quite limited. Brief of Appellee at 24. The Commission
responds that Carandola "lack[s] standing" to bring this challenge
because there is no evidence that it "desire[s] to present or act in any
ballet, musical, or other serious theatrical production of any kind."
Reply Brief at 4, 7. The Commission's contention rests on a funda-
mental misunderstanding of the overbreadth doctrine.
The overbreadth doctrine constitutes "a departure from traditional
rules of standing." Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
Pursuant to it, an individual may "challenge a statute on its face
because it also threatens others not before the court — those who
desire to engage in legally protected expression but who may refrain
from doing so rather than risk prosecution or undertake to have the
law declared partially invalid." Board of Airport Comm'rs v. Jews for
Jesus, Inc., 482 U.S. 569, 574 (1987) (internal quotation marks and
citation omitted). In this case, the overbreadth doctrine allows Caran-
6
dola to assert the First Amendment rights of those who do wish to
"present or act" in a ballet or other theatrical production, even if Car-
andola does not. See, e.g., Deja Vu of Nashville, Inc. v. Metro. Gov't,
274 F.3d 377, 387 (6th Cir. 2001).
If an overbreadth challenge succeeds, "any enforcement" of the
regulation at issue is "totally forbidden." Broadrick, 413 U.S. at 613.
This prohibition constitutes "strong medicine," however, which courts
use "sparingly and only as a last resort." Id. Thus, "a law should not
be invalidated for overbreadth unless it reaches a substantial number
of impermissible applications." New York v. Ferber, 458 U.S. 747,
771 (1982). Accordingly, to prevail, an overbreadth plaintiff, like
Carandola, must demonstrate that a regulation's overbreadth is "not
only . . . real, but substantial as well, judged in relation to the [chal-
lenged regulation's] plainly legitimate sweep," and also that no "limit-
ing construction" or "partial invalidation" could "remove the seeming
threat or deterrence to constitutionally protected expression." Broadr-
ick, 413 U.S. at 613, 615.
B.
The level of First Amendment scrutiny a court applies to determine
the "plainly legitimate sweep" of a regulation depends on the purpose
for which the regulation was adopted. If the regulation was adopted
to burden disfavored viewpoints or modes of expression, a court
applies strict scrutiny. See Texas v. Johnson, 491 U.S. 397, 406-07,
410-15 & n.9 (1989). If, by contrast, the regulation was adopted for
a purpose unrelated to the suppression of expression — e.g., to regu-
late conduct, or the time, place, and manner in which expression may
take place — a court must apply a less demanding intermediate scru-
tiny. See id. at 406-07; see also City of Erie v. Pap's A.M., 529 U.S.
277, 289 (2000) (plurality opinion) (citations omitted); id. at 310(Souter, J., concurring in part and dissenting in part).
In this case, the district court concluded that both § 18B-1005(a)
and the Rule are content-based "on their face," and that "[t]he state
has failed to provide sufficient evidence that the challenged statute
and regulation were not purposed upon hostility towards the content
of expression." Carandola, 147 F. Supp. 2d at 388-91. For this rea-
son, the court applied the highest level of scrutiny — strict scrutiny.
7
We believe that the court erred in doing so. Even assuming that
§ 18B-1005(a)(5) of the statute1 and the Rule do refer to content, they
need withstand only intermediate scrutiny.
The Supreme Court has instructed that measures to regulate sexu-
ally explicit entertainment outside the home receive intermediate
scrutiny if they are not premised on a desire to suppress the content
of such entertainment, but rather to address the harmful secondary
effects of such entertainment: higher crime rates and lower property
values, see Alameda Books, 122 S. Ct. at 1736; Boos v. Barry, 485
U.S. 312, 320 (1988) (citing Renton, 475 U.S. at 48), and unwanted
interactions between patrons and entertainers, such as public sexual
conduct, sexual assault, and prostitution. See California v. LaRue, 409
U.S. 109, 110-11 (1972); 44 Liquormart, Inc. v. Rhode Island, 517
U.S. 484, 515 (1996).2
____________________________________________________________
1
We note that the district court's order enjoins the Commission from
enforcing both Rule 2S.0216 and N.C. Gen. Stat. § 18-1005 in their
entirety. On appeal, Carandola does not argue that N.C. Gen. Stat. § 18B-
1005(a)(1), (2), (3), or (6) (prohibiting fighting, disorderly conduct,
gambling, and the like, and authorizing the Commission to write certain
rules) violate the Constitution, and we see no reason to hold that they do.
Accordingly, we vacate the portion of the injunction prohibiting the
Commission from enforcing those subsections of the statute.
2
However, contrary to the Commission's apparent belief, the fact that
the challenged restrictions regulate liquor licenses does not affect the
level of scrutiny. To be sure, the Supreme Court originally did embrace
the view that the Twenty-first Amendment creates an "added presump-
tion in favor of the validity" of state liquor regulations. See LaRue, 409
U.S. at 118; see also Doran, 422 U.S. at 932-33 (commenting that LaRue
"concluded that the broad powers of the States to regulate the sale of
liquor, conferred by the Twenty-first Amendment, outweighed any First
Amendment interest in nude dancing"). However, the Court has since
specifically disavowed this approach. See 44 Liquormart, 517 U.S. at
516 ("[W]e now disavow [LaRue's] reasoning insofar as it relied on the
Twenty-first Amendment."). Thus, the Court has held that "the Twenty-
first Amendment . . . does not license the States to ignore their obliga-
tions under other provisions of the Constitution" or otherwise "qualify
the constitutional prohibition against laws abridging the freedom of
speech embodied in the First Amendment." Id. at 516 (citation and inter-
nal quotation marks omitted). Accordingly, the result reached in LaRue
remains sound not because a state enjoys any special authority when it
burdens speech by restricting the sale of alcohol, but rather because the
regulation in LaRue complied with the First Amendment. Id. at 515; see
infra at 17-19.
8
Such measures, the Court has explained, regulate expression only
incidentally, because the expression "happen[s] to be associated" with
the adverse effects the state seeks to address. Boos, 485 U.S. at 320.
The measures are therefore "justified without reference to the content
of the regulated speech" and do not receive strict scrutiny. Renton,
475 U.S. at 48 (quoting from Va. Pharmacy Bd. v. Va. Citizens Con-
sumer Council, Inc., 425 U.S. 748, 771 (1976)) (emphasis omitted);
see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 586 (1991) (Sou-
ter, J., concurring in the judgment) ("[Where] the State's interest in
banning nude dancing results from a simple correlation of such danc-
ing with other evils, rather than from a relationship between the other
evils and the expressive component of the dancing, the interest is
unrelated to the suppression of free expression." (emphasis added));
Pap's, 529 U.S. at 290-96 (plurality opinion) (explaining that Ren-
ton's analysis of a zoning regulation also applies to other kinds of reg-
ulations affecting sites that provide sexually explicit, adult
entertainment to the public); id. at 310 (Souter, J., concurring in part
and dissenting in part).
Put another way, in this limited context, the Supreme Court does
not equate reference to content with the suppression of content. Cf.
Reno, 521 U.S. at 867-68 (rejecting argument that Communications
Decency Act restrictions constituted "cyberzoning," analogous to the
zoning at issue in Renton, because the Act aimed to "protect children
from the primary effects of ``indecent' and ``patently offensive' speech,
rather than any ``secondary' effect of such speech"); Boos, 485 U.S.
at 320-21 (rejecting argument that "our international law obligation to
shield diplomats from speech that offends their dignity" is a "second-
ary effect" that could render a ban on protests near foreign embassies
content-neutral, because the interest is defined by "the direct impact
of speech on its audience").
In this case, the Commission asserts that it adopted the challenged
Rule and the legislature adopted § 18B-1005(a)(5) to address second-
ary effects — specifically, to protect "public decency" and to prevent
"disorderly conduct" and "blatant bacchanalian revelries" of the sort
described by the Supreme Court in LaRue, 409 U.S. at 110-11.
No record evidence supports this claim.3 For example, neither the
____________________________________________________________
3
In passing, the Commission suggests that the brief, vague testimony
it offered at the preliminary injunction hearing of a single former legisla-
9
statute nor the Rule includes a preamble or any other language clearly
stating a desire to address secondary effects. Cf. Pap's, 529 U.S. at
290 (plurality opinion) (noting that ordinance preamble stated a pur-
pose of prohibiting entertainment that "provid [es] an atmosphere con-
ducive to violence, sexual harassment, public intoxication,
prostitution, the spread of sexually transmitted diseases and other del-
eterious effects"). Nor has the Commission proffered a single study
of secondary effects relied upon by the legislature or Commission
when they decided to adopt § 18B-1005(a)(5) and the Rule.
Even though the Commission has submitted no direct evidence of
legislative motive, we believe that precedent requires us to evaluate
the challenged restrictions as content-neutral provisions aimed at sec-
ondary effects. Indisputably, both § 18B-1005(a)(5) and the Rule pro-
mulgated pursuant to § 18B-1005(a)(6) comprise part of North
Carolina's long-established alcohol control law, which the legislature
enacted to prevent illegal and disorderly conduct that may arise where
alcohol is served to the public. See § 18B-1005 (collecting laws
superceded by current section); see also Hart v. Ivey, 403 S.E.2d 914,
917-19 (N.C. Ct. App. 1991), aff'd on other grounds, 420 S.E.2d 174(N.C. 1992). Subsections (a)(1) through (a)(4) of that same statute
require permit holders to prevent, among other things, prostitution,
gambling, fights, and nudity. Subsection (a)(5) and the Rule, with
their prohibitions on sexual entertainment, are most naturally viewed
as companion provisions, also intended to prevent such societal ills.
We note that Carandola proffers no contrary evidence of an unconsti-
tutional motive.
For these reasons, we conclude that one purpose of § 18B-
1005(a)(5) and the challenged Rule is to address the secondary effects
that follow from lewd conduct on licensed premises, and that hostility
to erotic expression, if a purpose of the restrictions at all, does not
constitute the predominant purpose. Within the limited field of regula-
tions on public exhibitions of adult entertainment, this suffices for us
to treat the subsection and Rule as content-neutral and so subject only
____________________________________________________________
tor demonstrated the North Carolina legislature's intent in enacting
§ 18B-1005 in the early 1980s. This argument is clearly meritless. See
United States v. Monsanto, 491 U.S. 600, 610 (1998).
10
to intermediate scrutiny. See Pap's, 529 U.S. at 292 (plurality opin-
ion) (determining that public indecency ordinance applied to nude
dancing was content-neutral where "one purpose of the ordinance
[wa]s to combat harmful secondary effects" and regulated party could
not produce convincing evidence that hostility to erotic expression
was predominant purpose (emphasis added)); Renton, 475 U.S. at 47
(observing that where "predominate" purpose of a city ordinance was
to control secondary effects of adult entertainment this was "more
than adequate to establish" that the city's interest is unrelated to the
suppression of expression" (second emphasis added)).
C.
In sum, then, we subject the North Carolina restrictions only to
intermediate scrutiny in determining whether they adversely affect a
"substantial" amount of protected speech relative to their "plainly
legitimate sweep." Broadrick, 413 U.S. at 615.
III.
Intermediate scrutiny is not, however, a toothless standard. It
requires the government to produce evidence that a challenged regula-
tion "materially advances an important or substantial interest by
redressing past harms or preventing future ones. These harms must be
``real, not merely conjectural,' and the regulation must ``alleviate these
harms in a direct and material way.'" Satellite Broad. & Communica-
tions Ass'n v. FCC, 275 F.3d 337, 356 (4th Cir. 2001) (quoting Tur-
ner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)).
The "appropriate focus" of this inquiry is not "the actual intent of
the enacting legislature." Barnes, 501 U.S. at 582 (Souter, J., concur-
ring in the judgment). A court determines "the actual intent" earlier,
in selecting the appropriate level of scrutiny. In determining whether
restrictions advance an important interest, a court asks only whether
the government proffers evidence that the regulation serves "a current
governmental interest." Id. (emphasis added); see also Essence, Inc.
v. City of Federal Heights, 285 F.3d 1272, 1284-85 (10th Cir. 2002);
Jake's, Ltd. v. City of Coates, 284 F.3d 884, 888 (8th Cir. 2002); J&B
Entm't, Inc. v. City of Jackson, 152 F.3d 362, 371-72 (5th Cir. 1998);
Philips v. Borough of Keyport, 107 F.3d 164, 178 (3d Cir. 1997).
11
The Commission has produced no evidence — either current or
otherwise — of harmful secondary effects in North Carolina. This
failure might not pose a problem if the challenged restrictions applied
only to bars and clubs that present nude or topless dancing. Such
entertainment has "a long history of spawning deleterious effects,"
including "prostitution and the criminal abuse and exploitation of
young women," and in most cases a city or state need carry only a
minimal burden to demonstrate its interest in regulation of such activ-
ity. Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634, 637 (4th Cir.
1999). In particular, where "nude dancing . . . is of the same character
as the adult entertainment at issue in Renton, Young v. American Mini
Theatres, Inc., and California v. LaRue," a governmental entity may
rely on the "evidentiary foundation" set forth in those cases to "con-
clude that such nude dancing [i]s likely to produce the same second-
ary effects" in its jurisdiction unless the plaintiff produces clear and
convincing evidence to the contrary. Pap's, 529 U.S. at 296-97 (plu-
rality opinion) (internal citations shortened); see also Alameda Books,
122 S. Ct. at 1736, 1737 (plurality opinion) (adopting view of plural-
ity in Pap's as to evidentiary requirement for adult entertainment
cases); id. at 1741 (Kennedy, J., concurring) (agreeing with the Ala-
meda Books plurality on this point, as a fifth vote).
The restrictions challenged here, however, sweep far beyond bars
and nude dancing establishments. They reach a great deal of expres-
sion "in the heartland of [the First Amendment's] protection." Caran-
dola, 147 F. Supp. 2d at 393. As the Commission has conceded, the
plain language of the restrictions prohibits on licensed premises any
entertainment that "simulate[s]" sexual behavior, even if performers
are fully clothed or covered, and even if the conduct is integral to the
production — for example, a political satire, a Shakespeare play
depicting young love, or a drama depicting the horrors of rape. The
Commission has further conceded that the restrictions have the same
prohibitory effect on much non-erotic dance — such as a ballet in
which one dancer touches another's buttock during a lift — and all
nudity or simulated nudity, however brief, in productions with clear
artistic merit — such as the Pulitzer Prize winning play, Wit. Further-
more, evidence before the district court indicated that the restrictions
also apply to much other mainstream entertainment, including popular
12
and award-winning musicals such as Cabaret, Chicago, Contact, and
The Full Monty and most kinds of jazz and flamenco dance.4
The Commission has offered nothing — no evidence, no judicial
opinion, not even any argument — to suggest that these mainstream
entertainments, to which it has conceded the restrictions apply, pro-
duce the kind of adverse secondary effects that the state seeks to pre-
vent. Indeed, it is difficult to believe that such evidence exists. One
simply does not associate these performances with disorderly behav-
ior — whether or not alcohol is served. Nor has the Commission sug-
gested any other state interest in burdening such entertainment. Thus,
the restrictions burden these performances, and the right of North
Carolinians to view them, without any justification at all.
The Commission has made equally fatal concessions with respect
to the scope of the proscription. Specifically, it admits that it has
issued 50,000 permits and that only a "small percentage" of permit-
tees present the kind of adult entertainment that legitimately concerns
the state. Among the "vast majority" of permittees that do not are col-
iseums, theaters, hotels, and restaurants, which instead present the
kind of mainstream entertainment mentioned above, and nevertheless
are burdened. Having made these admissions, the state has conceded
that the challenged regulations reach a "substantial number of imper-
missible applications." Ferber, 458 U.S. at 771.
Although we certainly recognize the state's interest in preventing
bar fights, prostitution, and similar problems, we see no reason for its
attempt to further these interests with such broadly drawn restrictions.
See United States v. Morison, 844 F.2d 1057, 1075-76 (4th Cir. 1988)
(noting that a court considers whether a state's legitimate interest
"could be achieved by a less drastic means, — that is, a method less
____________________________________________________________
4
As further evidence of the poor fit between the state's objective and
the undiscriminating terms of its restrictions, we note that the restrictions
would also punish the owners of the Charlotte Coliseum for allowing
basketball players or coaches to give a congratulatory pat on the bottom
during a game. While this conduct may not be protected by the First
Amendment, and so we do not count it as an impermissible application,
it does illustrate the extraordinary breadth of the restrictions at issue here.
13
invasive of free speech interests" (internal quotation marks and cita-
tion omitted)).
This case would present a different question if we could construe
the challenged restrictions in a manner that removed or reduced the
threat to constitutionally protected speech. See, e.g., Schultz v. City of
Cumberland, 228 F.3d 831, 850 (7th Cir. 2000) (noting that ordinance
applying to theaters which "regularly feature [ ]" nudity could be
enforced against "local theater[s] [that] probably would not resemble
an adult-entertainment establishment in the sense contemplated by
Renton and Young," and therefore adopting a saving construction,
construing "regularly features" to mean "always features"). However,
we cannot adopt a limiting construction unless a measure is "readily
susceptible" to such an interpretation by state courts, see Virginia v.
Am. Booksellers Ass'n, 484 U.S. 383, 397 (1988) (citations omitted),
and certainly cannot rewrite state law. See Erznoznik v. City of Jack-
sonville, 422 U.S. 205, 216 (1975). Here we find no word or phrase
that admits of a saving construction, and indeed, the Commission
does not even suggest a possible limiting construction.
Given the Commission's failure to do so and its concessions that
the challenged restrictions will burden a multitude of mainstream
musical, theatrical, and dance productions — from musical comedy
to ballet to political satire to flamenco dance — we have difficulty
understanding the Commission's insistence that "[n]o other" statute or
regulation "could be less invasive of free speech interests." Reply
Brief at 7.
The Commission even asserts that the challenged statute and Rule
constitute the "only means to protect its interest" in preventing soci-
etal problems. Id. Yet, other jurisdictions with similar concerns have
adopted narrower regulations, targeting only those venues where sec-
ondary effects are likely to arise, while leaving other speech unaf-
fected. See, e.g., Farkas v. Miller, 151 F.3d 900, 901-03, 905 (8th Cir.
1998) (upholding a statute making it a misdemeanor to permit nudity
or certain actual or simulated sex acts at a "place of business required
to obtain a sales tax permit" because the statute exempted any "the-
ater, concert hall, art center, museum, or similar establishment which
is primarily devoted to the arts or theatrical performances" (citation
omitted)); see also J&B Entm't, 152 F.3d at 376-77 (upholding zon-
14
ing ordinance that punished certain forms of nude entertainment
because the ordinance contained an exemption for persons "engaged
in expressing a matter of serious literary, artistic, scientific or political
value").
North Carolina could have adopted restrictions containing exemp-
tions like those in Farkas and J&B, and if it had done so, this case
might well yield a different result. North Carolina has not done so,
however. Accordingly, we must apply established legal principles to
the restrictions the state has enacted, and with respect to those, we
have little doubt that the district court did not abuse its discretion in
finding that Carandola would likely prevail on its overbreadth chal-
lenge.
In fact, in recent years, the Supreme Court has strongly reaffirmed
its refusal to allow even a most compelling state interest — protecting
children from pornography — to justify broadly drawn regulations
that sweep beyond their legitimate reach to restrict the availability of
art that adults have a constitutional right to view. For example, last
Term in Ashcroft, the Court struck down the Child Pornography Pre-
vention Act as overbroad, despite the "repugnan [ce]" of the crime
Congress sought to prevent, because the Act would also prohibit a
significant amount of art, including exhibitions of the play "Romeo
and Juliet," the movies "Traffic" and "American Beauty," and "hun-
dreds of other [works] of lesser note" that explored the theme of teen-
age sexuality. Ashcroft, 122 S. Ct. at 1399-1406. Similarly, in Reno,
the Court concluded that even the state's powerful interest in protect-
ing minors from harmful materials did not justify "reduc[ing] the
adult population . . . to . . . only what is fit for children." 521 U.S.
at 874-75 (internal quotation marks and citations omitted).
For the same sorts of reasons, in recent cases involving restrictions
on nudity and adult entertainment, our sister circuits have struck
down broadly drawn regulations that sought to address harmful sec-
ondary effects by restricting the availability of all entertainment with
sexual themes or nudity. For example, the Eighth Circuit recently
invalidated as unconstitutionally overbroad a "sexual contact" ordi-
nance that "did not exclusively cover conduct in adult entertainment
businesses, which has been recognized to cause harmful secondary
effects . . . but also covered conduct in any business or commercial
15
establishment, which could include theater performances, ballet per-
formances, and many other forms of live entertainment" because there
were "no findings" that such entertainment "cause[s] harmful second-
ary effects." Ways v. City of Lincoln, 274 F.3d 514, 516, 518-19 (8th
Cir. 2001).
Similarly, in Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 136
(6th Cir. 1994), the Sixth Circuit struck an ordinance that prohibited
"all public nudity, including live performances with serious literary,
artistic, or political value" because the city "failed to present evidence
linking expressive nudity in ``high-culture' entertainment to harmful
secondary effects." See also Spoons, Inc. v. O'Connor, 194 F.R.D.
589, 592-95 (N.D. Ohio 2000) (holding Triplett materially unaltered
by Pap's and applying Triplett to enjoin as overbroad an ordinance
unsupported by findings of secondary harms); cf. Schultz, 228 F.3d at
849 (holding an ordinance not supported by any "finding of harmful
secondary effects resulting from venues outside of adult entertain-
ment" to be overbroad but for a construction limiting its application
to such venues). The overbreadth of the challenged restrictions in this
case is at least as clear as the overbreadth in Ways, Triplett Grille, and
Spoons.
Nevertheless, the Commission argues that we must uphold the
challenged restrictions because they resemble part of a regulation
upheld by the Supreme Court in LaRue, 409 U.S. 109. In LaRue,
however, the plaintiffs did not challenge, and the Court did not con-
sider, a regulation that the state conceded would burden countless
mainstream entertainments. Id. at 119 n.5; see also id. at 121 (Doug-
las, J., dissenting) (raising only hypothetical, "conceivable" applica-
tions of the challenged regulation to protected speech in dissent).
Rather, the LaRue Court upheld a regulation that had not yet gone
into effect, on the strength of a detailed record of public hearings doc-
umenting serious problems with prostitution, public sexual conduct,
and sexually transmitted disease in establishments presenting nude
dancing and sexually explicit movies. Id. at 110-12. The regulation
had never been applied to anyone, and the state had neither attempted
any unconstitutional applications nor conceded that it would do so. In
this context, the Court upheld the regulation but recognized both that
"specific future applications of [the regulation] may engender con-
crete problems of constitutional dimension," and that "the sort of bac-
16
chanalian revelries that [California] sought to prevent by these liquor
regulations" were not "the constitutional equivalent of a performance
by a scantily clad ballet troupe in a theater." Id. at 118 & n.5.
In sharp contrast, here the state has expressly conceded that the
challenged restrictions do affect a substantial amount of expression
that resembles a ballet rather than "bacchanalian revelries," and there-
fore present the "concrete problems" that concerned the Supreme
Court in LaRue. Id. at n.5.
Not only do the Commission's concessions distinguish the case at
hand from the case presented to the LaRue Court, but they are doubly
significant given the Supreme Court's subsequent reinterpretation of
LaRue. In 44 Liquormart, the Court clarified both the proper analysis
and the appropriate scope of liquor regulations intended to protect
public decency. 517 U.S. at 515-516. The Court explained that such
liquor regulations must be analyzed in the same manner as any other
public decency regulation — the Twenty-first Amendment gives the
states no additional authority to restrict First Amendment rights. Id.;
see also supra note 2. As for the scope of such regulations, the 44
Liquormart Court characterized LaRue as governing the sale of alco-
holic beverages "in inappropriate locations" — not in all venues that
may sell liquor (including coliseums, arenas, theaters, and other sites
of mainstream entertainment), as some language in LaRue might have
suggested. 517 U.S. at 515. Only on this new rationale, the 44 Liquor-
mart Court concluded, could the LaRue "result" remain the "same."
Id. In so ruling, the Court relied on the leading cases addressing the
proper secondary effects analysis of ordinary public decency regula-
tions. See id. at 515 (citing American Mini Theatres, 427 U.S. 50, and
Barnes, 501 U.S. 560).
In his Barnes concurrence, which has been "generally adopted" as
the "narrowest opinion" explaining the result reached by the divided
Court,5 Justice Souter well explained the constitutional difficulties
with the restrictions at issue here. In Barnes, the Court upheld a pub-
____________________________________________________________
5
J&B Entm't, Inc., 152 F.3d at 370 (citing cases); see also Tunick v.
Safir, 209 F.3d 67, 83 (2d Cir. 2000) (separate opinion of Calabresi, J.)
(citing cases in which the Fifth, Sixth, Seventh, Eighth, and Eleventh
Circuits have treated Justice Souter's opinion as the holding of Barnes).
17
lic nudity statute as applied to plaintiffs who presented and performed
live, sexually explicit entertainment, but Justice Souter noted:
[b]ecause there is no overbreadth challenge before us, we
are not called upon to decide whether the application of the
statute would be valid in other contexts. It is enough, then,
to say that the secondary effects rationale on which I rely
here would be open to question if the State were to seek to
enforce the statute by barring expressive nudity in classes of
productions that could not readily be analogized to the adult
films at issue in Renton v. Playtime Theatres, Inc., 475 U.S.
41 . . . (1986). It is difficult to see, for example, how the
enforcement of Indiana's statute against nudity in a produc-
tion of "Hair" or "Equus" somewhere other than an "adult"
theater would further the State's interest in avoiding harmful
secondary effects, in the absence of evidence that expressive
nudity outside the context of Renton-type entertainment was
correlated with such secondary effects.
501 U.S. at 585 n.2 (Souter, J., concurring in the judgment).
In this case, of course, Carandola has presented an overbreadth
challenge and the Commission has conceded that the restrictions bur-
den a substantial number of mainstream entertainments, and has not
proffered any reason at all to believe that its interest in combating sec-
ondary effects will be furthered by prohibiting the sale of liquor
where serious plays or dance are performed. In such circumstances,
contrary to the Commission's contention, LaRue offers the state no
assistance. Indeed, the Supreme Court itself has explained that LaRue
lends "no support" to an ordinance authoritatively construed by the
state courts as applying to "all live entertainment" when, as in the case
at hand, nothing indicates that "unusual problems are presented by
live entertainment" generally. See Schad, 452 U.S. at 67, 73-74, n.15(striking ordinance as overbroad and explaining that even if city could
"validly place restrictions on certain forms of live nude dancing under
a narrowly tailored ordinance, that would not justify the exclusion of
all live entertainment . . . [including] the nude dancing involved in
this case").
18
For these reasons, we conclude that the district court did not abuse
its discretion in finding that Carandola would likely prevail on its
overbreadth challenge.6 Accordingly, we need not consider Caran-
dola's alternative claims that the restrictions are unconstitutionally
vague and unconstitutional as applied.
IV.
The remaining factors to be considered in awarding a preliminary
injunction — the alleged irreparable injury to the plaintiff without an
injunction, the potential harm to the defendant from the injunction,
and the public interest — all weigh in favor of Carandola.
As to Carandola's irreparable injury, the Supreme Court has
explained that "loss of First Amendment rights, for even minimal
periods of time, unquestionably constitutes irreparable injury." See
Elrod v. Burns, 427 U.S. 347, 373 (1976) (citation omitted). We also
note that Carandola faces the threat of a substantial fine and tempo-
rary suspension of its license on the basis of past conduct, and pro-
spectively, the loss of valuable business opportunities.
With respect to the harm that would befall if the injunction is left
in place, we agree with the district court that a state is "in no way
harmed by issuance of a preliminary injunction which prevents the
state from enforcing restrictions likely to be found unconstitutional.
If anything, the system is improved by such an injunction." Caran-
dola, 147 F. Supp. 2d at 395.
____________________________________________________________
6
Even before reinterpreting LaRue, the Supreme Court, when consider-
ing a case in precisely the same procedural posture as that at hand —
review of the grant of a preliminary injunction against a public decency
regulation — similarly held that the plaintiffs had made a "sufficient
showing of the likelihood of ultimate success on the merits." Doran, 422
U.S. at 932. In Doran, as here, the district court had found that the chal-
lenged restriction might burden "a number of . . . works of unquestion-
able artistic and socially redeeming significance." Id. at 933 (quoting
Salem Inn, Inc. v. Frank, 364 F. Supp. 478, 483 (E.D.N.Y. 1973)). The
Supreme Court found, as we have, that such a restriction, even if consti-
tutional as applied, could be "challenge[d] . . . on the basis of over-
breadth." Doran, 422 U.S. at 933.
19
The final prerequisite to the grant of a preliminary injunction is that
it serve the public interest. Again, we agree with the district court that
upholding constitutional rights surely serves the public interest. See
id.Of course, as the Supreme Court noted in similarly upholding a
preliminary injunction barring enforcement of another public decency
statute, "the extent of our appellate inquiry" is the determination that
the district court did not "abuse[ ] its discretion" in granting a prelimi-
nary injunction. Doran, 422 U.S. at 933. We make no prediction as
to the outcome at trial but simply hold, as the Supreme Court did, that
"[i]n these circumstances, and in the light of existing case law, we
cannot conclude that the District Court abused its discretion by grant-
ing preliminary injunctive relief." Id.
V.
For the foregoing reasons, the district court's judgment is
AFFIRMED IN PART AND VACATED IN PART.
NIEMEYER, Circuit Judge, dissenting:
This case represents yet another effort by state and local authorities
to regulate the purveyance of sexually explicit dancing in nightclubs
and bars in their communities. In this case, the purveyors of such
dancing in North Carolina challenge a North Carolina law prohibiting
licensees who are authorized to sell alcoholic beverages from provid-
ing entertainment during which "private parts are exposed," entertain-
ment that "includes or simulates sexual intercourse or any other
sexual act," or entertainment that is otherwise "lewd or obscene."
N.C. Gen. Stat. § 18B-1005.
Acting under the direction of this statute, the North Carolina Alco-
holic Beverage Control Commission adopted a regulation that pro-
vides as follows:
(a) No permittee or his employee shall allow any person to
perform acts of or acts that simulate:
20
(1) sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation, or any sexual acts that are prohib-
ited by law;
(2) the touching, caressing or fondling of the breasts, but-
tocks, anus, vulva or genitals;
(3) the display of the pubic hair, anus, vulva or genitals.
(b) No permittee or his employee shall allow any person to
use artificial devices or inanimate objects to depict any of
the prohibited activities described in Paragraph (a) of this
Rule.
(c) No permittee or his employee shall allow any person
who exposes to public view any portion of his pubic hair,
vulva, genitals or anus to remain in or upon the licensed
premises.
4 N.C. Admin. Code, tit. 4, r.2S.0216 (2002).
When Christie's Cabaret, a nude dancing establishment in Greens-
boro, North Carolina, was charged with violation of the statute and
regulation, it, together with a dancer, commenced this action facially
challenging the prohibitions as unconstitutional. Without challenging
their violation of the statute, they argue that the statute and regulation
deny them the right to free speech under the First and Fourteenth
Amendments to the United States Constitution.
The district court preliminarily enjoined enforcement of the North
Carolina law. For the reasons that follow, I would reverse.
In writing to affirm, the majority seeks to protect the offensive con-
duct which concededly violates both the statute and the regulation by
concluding that the statute and regulation are unconstitutionally over-
broad. It relies on an array of Supreme Court decisions that fail to dis-
pose of the issue before us. With respect to the one dispositive case,
California v. LaRue, 409 U.S. 109 (1972), the majority refuses to fol-
low the decision through an effort to distinguish it.
21
In LaRue, the Supreme Court was faced with a statute virtually
identical to the one before us and found it constitutional against a
facial challenge that it violated the First and Fourteenth Amendments.
The Supreme Court observed that "as the mode of expression moves
from the printed page to the commission of public acts that may them-
selves violate valid penal statutes, the scope of permissible state regu-
lations significantly increases." 409 U.S. at 117. In concluding that
the California law before it was constitutional, the Court explained
that the State had more latitude in regulating nude dancing because
the restrictions were imposed in connection with liquor licenses:
The substance of the regulations struck down prohibits
licensed bars or nightclubs from displaying, either in the
form of movies or live entertainment, "performances" that
partake more of gross sexuality than of communication.
While we agree that at least some of the performances to
which these regulations address themselves are within the
limits of the constitutional protection of freedom of expres-
sion, the critical fact is that California has not forbidden
these performances across the board. It has merely pro-
scribed such performances in establishments that it licenses
to sell liquor by the drink.
Viewed in this light, we conceive the State's authority in
this area to be somewhat broader than did the District Court.
Id. at 118.
In seeking to distinguish the Supreme Court's holding, the majority
points out that the State in LaRue did not concede the argument, as
did the State in this case, that the language of the statute could reach
some main street establishments. Whether a legal argument is con-
ceded or not, however, does not affect the Supreme Court's holding,
which reviewed the statute, not the legal arguments. Moreover, the
Supreme Court addressed the concession made in this case, observing
that the prohibition was constitutional even though "some of the per-
formances to which these regulations address themselves are within
the limits of constitutional protection." Id. at 118.
The majority also seeks to distinguish LaRue on the ground that the
Court in LaRue affirmed the statute "on the strength of a detailed
22
record of public hearings documenting serious problems with prosti-
tution, public sexual conduct, and sexually transmitted disease in
establishments presenting nude dancing and sexually explicit mov-
ies." Ante at 16 (citing LaRue, 409 U.S. at 110-12). But the fact that
the record here was not as complete as the one in the California con-
text cannot mean that the effects of sexually explicit conduct in North
Carolina would be different on the community than sexually explicit
conduct in California. The sexual appetite is a fact of the human con-
dition everywhere. And the cases are replete in acceptance of the ill
effects and moral degradation caused by such sexually explicit con-
duct in bars and nightclubs. See, e.g., City of Newport, Ky. v. Iaco-
bucci, 479 U.S. 92, 96 (1986); New York State Liquor Auth. v.
Bellanca, 452 U.S. 714, 717-18 (1981) (recognizing the potential for
"disturbances associated with mixing alcohol and nude dancing").
Finally, the majority suggests that LaRue is no longer good law
because it was "reinterpreted" in 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996). This argument, however, is simply based on a
misreading of 44 Liquormart. In that case, the court "disavowed" only
the reasoning in LaRue that depended on the Twenty-first Amend-
ment to support its holding. The Court was careful to state that it did
not "question[ ] the holding" of LaRue as it applied the First and Four-
teenth Amendments. See 44 Liquormart, 517 U.S. at 516. Indeed, the
Court pointed out that it would have reached "precisely the same
result [in LaRue] if it had placed no reliance on the Twenty-first
Amendment." Id. at 515.
The other circuit courts that have been faced with the exact issue
presented in this case have held, as I would, that the holding in LaRue
remains binding precedent with respect to similarly worded statutes.
See, e.g., BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 608 (8th Cir.
2001) ("Because the Supreme Court has refused to reject the holding
of LaRue, the case remains precedent that we are obliged to apply to
similar cases"); Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d
993, 996 & n.5 (11th Cir. 1998) (applying LaRue because 44 Liquor-
mart held that LaRue would have had the same outcome even if the
Twenty-first Amendment reasoning had not been applied).
For these reasons, I would reverse the entry of the preliminary
injunction, and therefore, I respectfully dissent.
23