Giovani Carandola, Ltd. v. Fox , 470 F.3d 1074 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GIOVANI CARANDOLA, LIMITED; 
NORTH CAROLINA GOLF AND TRAVEL
INCORPORATED, d/b/a Pure Gold of
Southern Pines, a North Carolina
Corporation,
Plaintiffs-Appellees,
v.
DOUGLAS A. FOX, in his official
capacity as Chairman of the North
Carolina Alcoholic Beverage
Control Commission; MIKE A.
JOYNER, in his official capacity as  No. 05-2308
Member of the North Carolina
Alcoholic Beverage Control
Commission; RICKY WRIGHT, in his
official capacity as Member of the
North Carolina Alcoholic Beverage
Control Commission; BRYAN E.
BEATTY, in his official capacity as
Secretary of the North Carolina
Department of Crime Control and
Public Safety,
Defendants-Appellants.

2 GIOVANI CARANDOLA v. FOX
GIOVANI CARANDOLA, LIMITED; 
NORTH CAROLINA GOLF AND TRAVEL
INCORPORATED, d/b/a Pure Gold of
Southern Pines,
Plaintiffs-Appellants,
v.
RICKY WRIGHT, in his official
capacity as Member of the North
Carolina Alcoholic Beverage
Control Commission; BRYAN
BEATTY, in his official capacity as  No. 06-1040
Secretary of the North Carolina
Department of Crime Control and
Public Safety; DOUGLAS A. FOX, in
his official capacity as Chairman of
the North Carolina Alcoholic
Beverage Control Commission;
MIKE A. JOYNER, in his official
capacity as Member of the North
Carolina Alcoholic Beverage
Control Commission,
Defendants-Appellees.

Appeals 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: October 24, 2006
Decided: December 15, 2006
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
GIOVANI CARANDOLA v. FOX 3
Affirmed in part, reversed in part, and vacated in part by published
opinion. Judge Motz wrote the opinion, in which Judge Niemeyer and
Judge Traxler joined.
COUNSEL
ARGUED: Christopher G. Browning, Jr., Solicitor General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Caro-
lina, for Appellants/Cross-Appellees. J. Michael Murray, BERK-
MAN, GORDON, MURRAY & DEVAN, Cleveland, Ohio, for
Appellees/Cross-Appellants. ON BRIEF: Roy Cooper, North Caro-
lina Attorney General, John Foster Maddrey, North Carolina Assistant
Solicitor General, John Julian Aldridge, III, Special Deputy Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants/Cross-Appellees. Steven D.
Shafron, BERKMAN, GORDON, MURRAY & DEVAN, Cleveland,
Ohio, for Appellees/Cross-Appellants.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The North Carolina Alcoholic Beverage Control Commission
appeals to this court a second time. The Commission once again seeks
relief from an order enjoining enforcement of a state statute regulating
conduct on premises licensed by the Commission to serve alcohol. In
the first appeal, we affirmed in relevant part an order that, in response
to a challenge by Giovani Carandola, Ltd., preliminarily enjoined a
predecessor statute. See Giovani Carandola, Ltd. v. Bason, 303 F.3d
507 (4th Cir. 2002) ("Carandola I"). The North Carolina legislature
then enacted a new statute. After Carandola, joined by additional
plaintiffs, challenged that statute, the district court permanently
enjoined the enforcement of its prohibitions on simulated sexual acts
and fondling of sexual organs, finding these provisions vague and
overbroad in violation of the First and Fourteenth Amendments; the
court, however, refused to enjoin a prohibition on nudity, holding that
it did not violate the Constitution. See Giovani Carandola, Ltd. v.
4 GIOVANI CARANDOLA v. FOX
Fox, 396 F. Supp. 2d 630 (M.D.N.C. 2005) ("Carandola II"). The
Commission appeals and Carandola cross-appeals. For the reasons
stated herein, we affirm in part, reverse in part, and vacate in part.
I.
Carandola operates Christie’s Cabaret, an erotic dancing establish-
ment in Greensboro, North Carolina, which holds Commission per-
mits to sell alcoholic beverages. On November 11, 2000, a
Commission enforcement officer witnessed erotic dancers at Chris-
tie’s performing in a manner that violated then-applicable state law.
See N.C. Gen. Stat. § 18B-1005 (1995) and 4 N.C. Admin. Code
2S.0216 (2002).1 When Christie’s received a violation notice, Caran-
1
Section 18B-1005 provided, in relevant part:
(a) Certain Conduct — It shall be unlawful for a permittee or
his agent or employee to knowingly allow any of the following
kinds of conduct to occur on his licensed premises:
...
(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 inter-
course or any other sexual act; or
(6) Any other lewd or obscene entertainment or conduct, as
defined by the rules of the Commission.
Pursuant to subsection (a)(6) of the statute, the Commission adopted 4
N.C. Admin. Code 2S.0216:
(a) No permittee or his employee shall allow any person to per-
form acts of or acts that simulate:
(1) sexual intercourse, masturbation, sodomy, bestiality, 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.
GIOVANI CARANDOLA v. FOX 5
dola filed suit, alleging that the statute and regulation violated its First
Amendment rights. The district court held a hearing at which the offi-
cer who cited Christie’s testified that general conduct violating the
statute and regulation included touching one’s own fully clothed but-
tocks, breasts, or genitals while in a licensed establishment. After the
hearing, the district court preliminarily enjoined enforcement of the
statute and the regulation on the ground that Carandola would likely
prevail on an overbreadth challenge.
In Carandola I, we affirmed in relevant part, concluding that the
statutory and regulatory restrictions swept "far beyond bars and nude
dancing establishments." 303 F.3d at 516. We noted that the Commis-
sion itself conceded that "the plain language of the restrictions prohib-
its 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." Id. (alteration in original). After careful review
of the Commission’s interpretation of the challenged restrictions, we
also determined that the restrictions were not "readily susceptible" to
a limiting construction: indeed, the Commission did "not even suggest
a possible limiting construction." Id. at 517. Accordingly, we held
that the district court "did not abuse its discretion in finding that Car-
andola would likely prevail on its overbreadth challenge" and thus
granting a preliminary injunction. Id. at 520.
In response to our ruling, the North Carolina General Assembly
enacted a new statute, N.C. Gen. Stat. § 18B-1005.1 (2005), which
provides:
(a) It shall be unlawful for a permittee or his agent or
employee to knowingly allow or engage in any of the fol-
lowing kinds of conduct on his licensed premises:
(b) No permittee or his employee shall allow any person to use
artificial devices or inanimate objects to depict any of the prohib-
ited 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, geni-
tals or anus to remain in or upon the licensed premises.
6 GIOVANI CARANDOLA v. FOX
(1) Any conduct or entertainment by any person
whose genitals are exposed or who is wear-
ing transparent clothing that reveals the geni-
tals;
(2) Any conduct or entertainment that includes
or simulates sexual intercourse, masturbation,
sodomy, bestiality, oral copulation, flagella-
tion, or any act that includes or simulates the
penetration, however slight, by any object
into the genital or anal opening of a person’s
body; or
(3) Any conduct or entertainment that includes
the fondling of the breasts, buttocks, anus,
vulva, or genitals.
(b) Supervision. — It shall be unlawful for a permittee to
fail to superintend in person or through a manager the busi-
ness for which a permit is issued.
(c) Exception. — This section does not apply to persons
operating theaters, concerts halls, art centers, museums, or
similar establishments that are primarily devoted to the arts
or theatrical performances, when the performances that are
presented are expressing matters of serious literary, artistic,
scientific, or political value.
The Commission then sought to vacate as moot the preliminary
injunction of the old statute. Although the Commission had not yet
enforced the new statute, Carandola (joined by several additional
plaintiffs) challenged the new statute, claiming that it too violated
both the First and Fourteenth Amendments. At a bench trial concern-
ing the validity of the new statute, Dr. Judith Hanna, an anthropolo-
gist who specializes in the non-verbal communication of dance,
testified on behalf of Carandola that "movements in dance such as
those with the hips, thighs, breasts, hair, and hands have traditionally
been associated with simulating sex." Carandola II, 396 F. Supp. 2d
at 653. The district court also considered testimony about whether
sexually oriented businesses create negative secondary effects. With-
GIOVANI CARANDOLA v. FOX 7
out resolving this question, the district court held that the Commission
had produced sufficient evidence to support the legislative conclusion
that sexually oriented businesses were associated with higher inci-
dents of crime. Id. at 651.
The district court then issued a detailed opinion in which it upheld
subsection 18B-1005.1(a)(1), concluding that the prohibition on
nudity furthered North Carolina’s interest in reducing negative sec-
ondary effects associated with the combination of adult entertainment
and alcohol. Id. at 652. However, the court enjoined the enforcement
of subsections (a)(2) and (a)(3), finding them both facially vague and
overbroad, and unconstitutional as applied to Carandola. Id. at 655,
663. The Commission appeals the district court’s determinations that
subsections (a)(2) and (a)(3) are facially vague and overbroad, and
unconstitutional as applied to Carandola. Carandola cross appeals,
arguing that the court should have enjoined subsection (a)(1) of the
statute, which prohibits nudity in licensed establishments. We con-
sider first the Commission’s appeal, then Carandola’s cross-appeal.
II.
The Commission contends that the district court erred in holding
the new statute facially vague and facially overbroad. We review the
district court’s legal conclusions de novo. North Carolina v. City of
Virginia Beach, 951 F.2d 596, 601 (4th Cir. 1992).
A.
The Commission initially argues that subsections (a)(2) and (a)(3)
are not vague. A statute is impermissibly vague if it either (1) "fails
to provide people of ordinary intelligence a reasonable opportunity to
understand what conduct it prohibits" or (2) "authorizes or even
encourages arbitrary and discriminatory enforcement." Hill v. Colo-
rado, 530 U.S. 703, 732 (2000). In particular, a court must ask
whether the statutory prohibitions "are set out in terms that the ordi-
nary person exercising ordinary common sense can sufficiently under-
stand and comply with." Broadrick v. Oklahoma, 413 U.S. 601, 608
(1973)(quoting U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Car-
riers, 413 U.S. 548, 579 (1973)).
8 GIOVANI CARANDOLA v. FOX
The district court invalidated subsection (a)(2) — prohibiting in
licensed establishments conduct that "simulates sexual intercourse,
masturbation, sodomy, bestiality, oral copulation, flagellation, or any
act that includes or simulates the penetration . . . by any object into
the genital or anal opening" — because it found the word "simulates"
vague. For example, the court feared that prohibiting "simulate[d]
sexual intercourse" would preclude entertainers from gyrating their
hips on stage "in a rapid motion." Carandola II, 396 F. Supp. 2d at
661.
However, the dictionary precisely defines "simulate" as a verb
meaning "to make a pretense of; feign . . . [or] to assume or have the
appearance or characteristics of." Webster’s New Universal
Unabridged Dictionary 1783 (1996). The Supreme Court and many
other courts have held that the word "simulate" is sufficiently clear
when used in similar statutory prohibitions. See, e.g., New York v.
Ferber, 458 U.S. 747, 765 (1982) (holding that a statute defining for-
bidden content, in part, as "actual or simulated sexual intercourse"
"sufficiently describes" the prohibited material); Miller v. California,
413 U.S. 15, 25 (1973) (noting that "ultimate sexual acts" whether
"actual or simulated" constitute a "plain example[ ] of what a state
statute could define for regulation" as obscene); United States v.
Adams, 343 F.3d 1024, 1034-36 (9th Cir. 2003) (upholding against
vagueness challenge a statute prohibiting the possession of materials
depicting a minor engaged in "sexually explicit conduct," which
includes "simulated" acts); Farkas v. Miller, 151 F.3d 900, 901, 905
(8th Cir. 1998) (upholding against vagueness challenge a statute pro-
hibiting "the actual or simulated public performance of any sex act"
because "[p]ersons of ordinary intelligence would not be confused as
to the . . . meaning of the term[ ] ‘simulated sex act’"). Indeed, Caran-
dola fails to cite, and we have not found, a case in which any court
has held "simulate" vague in a similar context.
We too conclude that in context "simulate" is sufficiently precise
to notify persons of ordinary intelligence of the conduct prohibited by
the statute and to prevent the risk of arbitrary or discriminatory
enforcement. As the Commission notes, "[T]here is a distinct and
very real difference between a gesture that may, in the abstract, sym-
bolize sexual intercourse (such as gyrating one’s hips) and an act that
causes the audience to believe that they are actually observing sexual
GIOVANI CARANDOLA v. FOX 9
intercourse." Reply Brief of Appellants at 25. An act only constitutes
simulated sexual intercourse or simulated masturbation if it creates
the realistic impression of an actual sexual act. No one would mistake
a dancer gyrating her hips for someone having intercourse, nor
believe that a Carolina Panthers cheerleader patting her buttocks as
part of a dance routine was masturbating.
The district court also enjoined enforcement of subsection (a)(3) —
banning in licensed establishments "fondling of the breasts, buttocks,
anus, vulva, or genitals" — after finding the word "fondling" uncon-
stitutionally vague. The court noted that dictionaries define "fondle"
differently. Carandola II, 396 F. Supp. 2d at 661 (comparing Web-
ster’s New Universal Unabridged Dictionary 745 (1996) (defining
"fondle" as "to handle or touch lovingly, affectionately, or tenderly;
caress"), Webster’s II New Riverside University Dictionary 494
(1984) (defining "fondle" as "to treat indulgently and solicitously:
pamper"), and Webster’s Ninth New Collegiate Dictionary 480 (1987)
(defining "fondle" as "to show affection or desire by caressing")).
Notwithstanding these slight differences, however, all definitions
of "fondle" imply an element of "love," "affection," or "indulgen[ce],"
whereas mere touching does not. For this reason, the new statute is
more precise than the regulations implementing its predecessor,
which banned "touching" as well as "fondling." See 4 N.C. Admin.
Code 2S.0216(a)(2) (2002). Moreover, the present statute uses the
single word "fondling" in conjunction with specified erogenous
zones, indicating that it aims to prevent overt sexual contact, some-
thing the ordinary person likely understands. See N.C. Gen. Stat.
§ 18B-1005.1(a)(3)(2005).
Furthermore, although few cases have considered whether the word
"fondle" is vague, those that have done so have concluded, as we do,
that it is not. See, e.g., Kev, Inc. v. Kitsap County, 793 F.2d 1053,
1057-58 (9th Cir. 1986) (holding that provisions of an ordinance pro-
hibiting erotic dancers from "fondling" and "caressing" any patron
were not unconstitutionally vague); J.L. Spoons, Inc. v. O’Connor,
190 F.R.D. 433, 444 (N.D. Ohio 1999) (holding that the word "fon-
dle" is sufficiently clear and noting that "[r]egulatory language need
not be mathematically precise"). Like "simulate," "fondling" is suffi-
ciently clear to put persons of ordinary intelligence on notice as to
10 GIOVANI CARANDOLA v. FOX
what conduct the statute prohibits and to prevent the risk of arbitrary
enforcement.
For these reasons, we reverse the portions of the district court’s
order finding the new statute unconstitutionally vague on its face.
B.
The Commission next argues that the district court erred in holding
subsections (a)(2) and (a)(3) facially overbroad. Pursuant to the over-
breadth doctrine, a party 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." Bd. of Airport Comm’rs v. Jews for Jesus,
Inc., 482 U.S. 569, 574 (1987) (internal quotation marks omitted).
"[W]here conduct and not merely speech is involved . . . the over-
breadth of a statute must not only be real, but substantial as well,
judged in relation to the statute’s plainly legitimate sweep." Broadr-
ick, 413 U.S. at 615. "[A] law should not be invalidated for over-
breadth unless it reaches a substantial number of impermissible
applications . . . ." Ferber, 458 U.S. at 771. If an overbreadth chal-
lenge succeeds, "any enforcement" of the regulation at issue is "to-
tally forbidden." Broadrick, 413 U.S. at 613. Thus, the Supreme
Court has famously cautioned that the overbreadth doctrine "is, mani-
festly, strong medicine" and should be used "sparingly and only as a
last resort." Id. A court should invoke a "limiting construction" or
employ "partial invalidation" before resorting to a finding of facial
overbreadth. Id.
1.
To determine whether a statute "reaches a substantial number of
impermissible applications," Ferber, 458 U.S. at 771, a court must
apply the appropriate level of First Amendment scrutiny. In Caran-
dola I, we subjected the predecessor North Carolina statute to inter-
mediate, rather than strict, scrutiny because the legislature enacted it,
at least in part, "to address the secondary effects that follow from
lewd conduct on licensed premises, and [because] hostility to erotic
expression, if a purpose of the restrictions at all, does not constitute
GIOVANI CARANDOLA v. FOX 11
the predominant purpose." Carandola I, 303 F.3d at 515 (citing City
of Erie v. Pap’s A.M., 529 U.S. 277, 292 (2000) (plurality opinion)
and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47
(1986)). It is even more plain that in enacting the new statute the leg-
islature acted to reduce the secondary effects that flow from adult
entertainment on licensed premises. Indisputably, the legislature
passed the new statute in response to our opinion in Carandola I and
the preamble to the new statute expressly states that its purpose is "to
address the harmful secondary effects of such entertainment, includ-
ing higher crime rates, public sexual conduct, sexual assault, prostitu-
tion, and other secondary negative effects," rather than to "suppress
the conduct of [such] entertainment." 2003 N.C. Sess. Laws 382. Like
the old statute, the new statute does not have as its "predominant pur-
pose" an intent to suppress free expression. Thus, we again apply
intermediate scrutiny to determine whether the statute reaches a "sub-
stantial number of impermissible applications," Ferber, 458 U.S. at
771.
To withstand intermediate scrutiny, a state must demonstrate that
a statute "materially advances an important or substantial interest by
redressing past harms or preventing future ones." Satellite Broad. &
Commc’ns Ass’n v. FCC, 275 F.3d 337, 356 (4th Cir. 2001) (citing
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994)). Here, as
in Carandola I, even without considering any evidence, we can con-
clude that the State has a substantial interest in regulating nude and
topless dancing, because such entertainment has "‘a long history of
spawning deleterious effects.’" 303 F.3d at 516 (quoting Steakhouse,
Inc. v. City of Raleigh, 166 F.3d 634, 637 (4th Cir. 1999)). Similarly,
we can conclude that the State has a substantial interest in regulating
"simulate[d]" sexual activity and "fondling" of sexual organs in
licensed establishments because the State may "rely on the evidenti-
ary foundation set forth in Renton and [Young v. American Mini The-
atres, Inc., 427 U.S. 50 (1976)], to the effect that [harmful] secondary
effects are caused by the presence of even one adult entertainment
establishment in a given neighborhood." Pap’s, 529 U.S. at 297.2
2
Although Pap’s did not concern the exact conduct regulated here, it
stands for the proposition that a government entity may rely on the evi-
dentiary foundation established in Renton and Young to conclude that
adult entertainment establishments, like Christie’s Cabaret, are associ-
ated with negative secondary effects.
12 GIOVANI CARANDOLA v. FOX
Despite these substantial government interests, in Carandola I we
found the prohibitions overbroad because the challenged restrictions
prohibited myriad expressive activities within "the heartland of [First
Amendment] protection." 303 F.3d at 516 (internal quotation marks
omitted). There, the Commission interpreted the old restrictions
broadly, and construed "simulated" sexual behavior to ban sexually
explicit conduct even by "fully clothed" performers in political satires
or Shakespeare plays. Id. According to the Commission, the old
restrictions also prohibited "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." Id. The
Commission argued that such broad restrictions constituted the "‘only
means to protect its interest’ in preventing societal problems." Id. at
517 (quoting Reply Brief at 7). We rejected that argument, concluding
that the restrictions were facially overbroad because they swept "far
beyond bars and nude dancing establishments" to reach a great deal
of protected expression. Id. at 516.
Carandola maintains that, like the old restrictions, the new statute
is facially overbroad because it prohibits "vast amounts of constitu-
tionally protected expression." Brief of Appellees at 23. According to
Carandola, the new statute’s prohibition on "simulate[d]" sexual
activity proscribes ballet, hip hop, belly dancing, flamenco, jazz danc-
ing, and even "the Irish Step Dance," and its prohibition on "fondling"
bars any "touch[ing] of [the] breast and buttocks." Id. at 31. Finally,
Carandola contends that the exception set forth in the new statute —
rendering all prohibitions inapplicable to performances in "theaters,
concert halls, art centers, museums or similar establishments that are
primarily devoted to the arts or theatrical performances, when the per-
formances that are presented are expressing matters of serious liter-
ary, artistic, scientific, or political value" — is "exceedingly narrow"
and does not cure the statute’s facial overbreadth. Id. at 34.3
3
Carandola cites cases from our sister circuits that assertedly support
this view. See, e.g., Conchatta Inc. v. Miller, 458 F.3d 258 (3d Cir.
2006); Odle v. Decatur County, 421 F.3d 386 (6th Cir. 2005); Dream
Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); R.V.S., LLC
v. City of Rockford, 361 F.3d 402 (7th Cir. 2004); Ways v. City of Lin-
coln, 274 F.3d 514 (8th Cir. 2001); Schultz v. City of Cumberland, 228
GIOVANI CARANDOLA v. FOX 13
The district court largely accepted this argument, but we cannot. To
do so would ignore the Commission’s concessions about the scope of
the new statute and trivialize the legislative revisions made in
response to Carandola I.
2.
First, rather than asserting, as it did in Carandola I, that the new
statute reaches every wiggle or touch in a licensed establishment, the
Commission concedes, indeed argues, that the new statute bans only
limited activities. The Commission acknowledges that subsection
(a)(2)’s prohibition on "simulate[d]" sexual acts only applies to per-
formances "that give the realistic impression or illusion that sexual
intercourse [or masturbation, etc.] is being performed for the audi-
ence." Reply Brief of Appellants at 30. Similarly, the Commission
recognizes that subsection (a)(3)’s prohibition on "fondling" of but-
tocks, genitals, breasts, etc. only bars a performer from actually "ma-
nipulating specified erogenous zones." Id.Under the Commission’s interpretation, the new statute has no pro-
hibitory effect on non-erotic dance and would not apply to "other
mainstream entertainment, including popular and award-winning
musicals such as Cabaret, Chicago, Contact, and The Full Monty."
Carandola I, 303 F.3d at 516. In fact, the Commission conceded at
oral argument that even a performance by Madonna, who is known
for her sexually explicit dancing, would not fall within the new stat-
ute’s ambit unless it gave the audience the realistic impression that
Madonna was actually performing a sexual act.
Carandola argues, however, that we cannot accept the Commis-
sion’s construction of "simulates" and "fondling" — not because the
F.3d 831 (7th Cir. 2000); Triplett Grille, Inc. v. City of Akron, 40 F.3d
129 (6th Cir. 1994). But in fact, not a single one of these cases invali-
dates for facial overbreadth a statute like that at issue here. None
involves a statute with an exception for performances of serious artistic
value at certain venues. Furthermore, the majority of these cases do not
concern prohibitions like that here, which only apply to places serving
alcohol; such prohibitions are necessarily narrower than a universal ban
on sexually explicit conduct.
14 GIOVANI CARANDOLA v. FOX
statute is not "readily susceptible" to this construction, but because
the "evidentiary record refutes" this construction. Brief of Appellees
at 37. The "evidentiary record" on which Carandola relies, however,
involves enforcement of the old restrictions; the new statute has never
been enforced and as such we have no relevant "evidentiary record."
Rather, the Commission has iterated and reiterated that it does not
interpret and will not enforce the new statute as it did the old restric-
tions. See Reply Brief of Appellants at 23 n.5, 26 n.6, and 28 n.7. On
a facial challenge, we must apply a reasonable limiting construction
where one is available. See Virginia v. Am. Booksellers Ass’n, 484
U.S. 383, 397 (1988). Here, the statute is "readily susceptible" to the
construction offered by the Commission, see id., and we have no rea-
son to doubt that the Commission will enforce the statute in accor-
dance with this limited interpretation.
3.
Construing the new statute to prohibit only manipulation of speci-
fied erogenous zones and conduct that gives the realistic impression
of a sexual act cures much of the overbreadth we found in the old
restrictions in Carandola I. But there, we also noted that the chal-
lenged restrictions reached far beyond bars and nude dancing estab-
lishments to affect venues such as arenas, theaters, and comedy clubs
— all places that might provide entertainment protected by the First
Amendment. Citing Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998),
and J&B Entm’t v. City of Jackson, 152 F.3d 362 (5th Cir. 1998), we
suggested that the State could have limited the scope of its statute to
"target[ ] only those venues where secondary effects are likely to
arise, while leaving other speech unaffected." Carandola I, 303 F.3d
at 517.
The North Carolina legislature took this suggestion to heart and
provided an exception in the new statute for "persons operating the-
aters, concert halls, art centers, museums, or similar establishments
that are primarily devoted to the arts or theatrical performances, when
the performances that are presented are expressing matters of serious
literary, artistic, scientific, or political value." N.C. Gen. Stat. § 18B-
1005.1 (2005). Carandola argues that this exception is "exceedingly
narrow," Brief of Appellees at 34, and the district court agreed.
GIOVANI CARANDOLA v. FOX 15
The exception is indeed narrower than that in one of the cases we
cited, J&B Entm’t.4 There the statute exempted all persons "engaged
in expressing a matter of serious literary, artistic, scientific or political
value," regardless of the venue in which the expression took place.
J&B Entm’t, 152 F.3d at 381. But the exception here is similar to that
upheld in Farkas, the other case we noted as an exemplar in Caran-
dola I; in Farkas, the challenged statute prohibited "the actual or sim-
ulated public performance of any sex act" in businesses required to
obtain a sales tax permit, but exempted those performances in "a the-
ater, concert hall, art center, museum, or similar establishment which
is primarily devoted to the arts or theatrical performances." 151 F.3d
at 901, 902.
To be sure, neither the exception in Farkas, nor that in the new
North Carolina statute covers all venues that might conceivably host
serious artistic performances. Thus, we cannot agree with the Farkas
court that such an exception fully "limits the reach of the restrictions
to the type of adult entertainment that is associated with harmful sec-
ondary effects." Id. at 905. However, the exception does shelter most
protected activity.
Certainly, the new statute, with the limited constructions of subsec-
tions (a)(2) and (a)(3) proffered by the Commission and the exception
in subsection (c), does not "reach[ ] a substantial number of imper-
missible applications." Ferber, 458 U.S. at 771. Accordingly, we
reverse the portions of the district court order holding subsections
(a)(2) and (a)(3) of the statute unconstitutional as facially overbroad.5
4
We reject the Commission’s argument that the exception in the statute
protects all performances of serious literary, artistic, scientific, or politi-
cal value, no matter where performed; for example, the Commission sug-
gests that a restaurant, nightclub, or other establishment presenting a play
would at that moment become a "theater," and so would be protected
from the ban. Reply Brief of Appellants at 33. Carandola argues and we
agree that the language of the exception is not "readily susceptible" to the
Commission’s proposed construction. Accordingly, although of course
the Commission may enforce the exception in this manner, we cannot
adopt that construction. See Carandola I, 303 F.3d at 517 (citing Erznoz-
nik v. City of Jacksonville, 422 U.S. 205, 216 (1975)).
5
The Commission also appeals the district court’s holding that subsec-
tions (a)(2) and (a)(3) of the new statute are unconstitutional as applied
16 GIOVANI CARANDOLA v. FOX
III.
Carandola cross appeals the portion of the district court order find-
ing that subsection (a)(1) of the new statute — which prohibits "[a]ny
conduct or entertainment by any person whose genitals are exposed
or who is wearing transparent clothing that reveals the genitals" —
withstands a facial challenge. Carandola maintains that the district
court should have enjoined enforcement of subsection (a)(1) because
it prohibits nudity even when it occurs as part of a serious theatrical
production or artistic work.
We agree with the district court, however, that subsection (a)(1) is
not facially overbroad. The Supreme Court has upheld general public
nudity statutes (i.e., not prohibitions confined to licensed establish-
ments like those at issue here) that required erotic dancers to wear
pasties and G-strings. See Pap’s, 529 U.S. at 300-01; Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 571 (1991) (plurality opinion) ("[T]he
requirement that the dancers don pasties and G-strings does not
deprive the dance of whatever erotic message it conveys; it simply
makes the message slightly less graphic.").
Although Pap’s and Barnes do not involve what might be generally
regarded as serious theatrical productions, nude expression in such
to Carandola. Similarly, Carandola cross-appeals, arguing that the district
court erred in its analysis of the as-applied challenge in declining to
resolve the factual dispute over whether sexually oriented businesses are
actually associated with negative secondary effects. Neither claim is ripe
for review, however, since the new statute has never been applied to Car-
andola. Carandola bases its as-applied challenge entirely on the citations
it received under the old statute. "Past exposure to illegal conduct does
not in itself show a present case or controversy . . . if unaccompanied by
any continuing, present adverse effects." Renne v. Geary, 501 U.S. 312,
320-21 (1991). Thus, Carandola cannot claim any current adverse
affects. See Jordahl v. Democratic Party of Va., 122 F.3d 192, 198 (4th
Cir. 1997) (holding as-applied challenge not ripe because "all of the
‘harms’ which the [plaintiff] alleges were suffered by it are stated in the
past tense and relate to . . . a statute which is no longer in effect").
Because Carandola’s as-applied challenge is not ripe for review, we must
vacate the judgment of the district court that subsections (a)(2) and (a)(3)
are unconstitutional as applied to Carandola.
GIOVANI CARANDOLA v. FOX 17
productions is most likely to occur in the venues specifically
exempted from the new statute’s prohibitions. It is possible to imag-
ine hypothetical examples of protected nudity that would occur in
licensed venues not exempted by the new statute, but it is hard to con-
ceive of a substantial number of such impermissible applications. See
J&B Entm’t, 152 F.3d at 367 (upholding statute against overbreadth
challenge because "although hypothetical examples in which the
Ordinance may be overbroad can be imagined, these examples, in
comparison to its legitimate sweep, are not substantial"). We thus
affirm the district court judgment upholding subsection (a)(1) of the
statute.
IV.
For the foregoing reasons, the district court’s judgment is
AFFIRMED IN PART,
REVERSED IN PART,
AND VACATED IN PART.