RICHMOND, Virginia—A three-judge panel of the Fourth Circuit Court of Appeals upheld a district court ruling last week that permanently invalidated an amended Maryland state law that—had it been allowed to go into effect in 2005—would have imposed severe restrictions on strip clubs in the state. In an 18-page opinion, however, Judge James Wynn, with Judge Mark Davis fully concurring and Senior Circuit Judge Clyde Hamilton partially dissenting, provided Maryland lawmakers with a detailed roadmap how to avoid making the same mistake in the future.
Specifically, the statute forbade a person from:
(1) Be[ing] employed or used in the sale or service of alcoholic beverages in or upon the licensed premises while the person is unclothed or in attire, costume or clothing so as to expose to view any portion of the female breast below the top of the areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals;
(2) Be[ing] employed or act[ing] as a hostess or act[-ing] in a similar-type capacity to mingle with the patrons while the hostess or person acting in a similar-type capacity is unclothed or in attire, costume or clothing as described in paragraph (1) of this subsection;
(3) Encourag[ing] or permit[ting] any person on the licensed premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person; or
(4) Permit[ting] any employee or person to wear or use any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion of it.
The statute also restricts certain entertainment, specifically prohibiting a person from:
(1) Permit[ting] any person to perform acts of or acts which simulate:
(i) The act of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;
(ii) The touching, caressing or fondling of the breast, buttocks, anus or genitals; or
(iii) The display of the pubic hair, anus, vulva or genitals;
(2) Permit[ting] any entertainer whose breasts or buttocks are exposed (subject to the restrictions of paragraph (1) of this subsection) to perform closer than six feet from the nearest patron; or
(3) Permit[ting] any person to use artificial devices or inanimate objects to depict, perform or simulate any activity prohibited by paragraph (1) of this subsection.
Under the statute, an establishment found engaging in prohibited activities would have its license to sell alcoholic beverages revoked.
The statute also exempted, under a grandfather clause, certain long-term license holders from potential license revocation. That clause provided an exemption for a current alcoholic beverages license holder that currently conducts an activity that is made unlawful by this Act only if the license holder:
(a) received approval from the Board to conduct the activity on or before August 15, 1981; and (b) has owned the licensed premises continuously since September 1, 1981.
Wynn, utilizing intermediate scrutiny, determined that the district court was correct when, following a bench trial, it determined in April 2009 that the statutory amendments passed by the Maryland state legislature in 2005 were facially overbroad because they imposed restrictions that went "well beyond strip clubs and other establishments primarily offering adult entertainment."
Despite acknowledging that the defendants had "not produced evidence of harmful secondary effects in Prince George’s County, Maryland"—which in light of the Supreme Court's ruling in City of Los Angeles v. Alameda Books would be required to bolster their argument that the amendments were needed to address secondary effects "arising from the combination of adult entertainment and alcohol consumption"—the court nonetheless conceded, "failure might not pose a problem if the challenged restrictions applied only to bars and clubs that present nude or topless dancing."
Quoting from a similar case, Carandola I, Wynn concluded, "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."
These restrictions, he continued, "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."
The defendants, Wynn added, "do not argue that restricted artistic performances produce the secondary effects purportedly targeted by the statute. Instead, they argue that the statute is immune from this overbreadth challenge because no establishment licensed to serve alcohol in Prince George’s County presents productions of artistic merit that would fall within the statute’s ambit."
In other words, sayeth the state, trust us, we won't use the law against a production of A Midsummer Night's Dream, but we will if it's the touring version of Not A Midsummer's Night Dream XXX.
"Essentially," wrote Wynn, "Defendants implore this Court to ignore the plain language of the statute and rely instead on the government’s assurances that the statute would not be unconstitutionally enforced. In support of this plea, Defendants submitted affidavits from enforcement authorities in nine counties where the statute currently applies, each stating that in the relevant jurisdiction, § 10-405 has never been enforced against an establishment offering productions of clear artistic merit. Nevertheless, no limitation on the scope of the sweeping prohibitions exists in the statute." [Original italics]
Even then, the court considered the possibility of applying a "limiting construction" or "partial invalidation" in order to preserve the constitutionality of the statute, but found the language of the law was "not readily susceptible to a limiting construction," and also could find no way to fix the statute without expanding the authority of the court.
"While Defendants argue that the statute has been, and will be, enforced only against adult entertainment establishments, they do not propose a way to read the statute such that it would apply only to those licensees," the court found. "A history of limited enforcement is insufficient to establish the susceptibility of a statute to a limiting construction, particularly when the language of the statute itself lacks any limitation on the scope of enforcement."
In fact, during the 2008-9 sessions, the Maryland legislature could have fixed, and the court was waiting for it to fix, the problematic parts of the law. It neglected to do so, however, and in his ruling Judge Wynn essentially called the state's attention to its legislative failure while also delineating how easy the correction would have been to make.
"The Maryland General Assembly could, of course, appropriately limit the statute," wrote Wynn. "Notably, to rescue the statute at issue in Carandola I from unconstitutional overbreadth, the North Carolina legislature amended it to include a 'carve-out' provision stating that:
[t]his section does not apply to persons operating theaters, 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.
After expeditiously dispatching Hamilton's dissent—"The dissent’s efforts to save the statute would usurp the legislature’s role, rewrite the statute, and leave it without the important carve-out provision for matters of literary, artistic, scientific, or political value relied upon by this Court"—as well as the state's attempt to carve out a grandfather clause the lower court found violated the Equal Protection Clause of the Fourteenth Amendment—"Because the statute is facially overbroad, its enforcement is 'totally forbidden'"—the court concluded by affirming "the district court’s permanent injunction against the enforcement of Md. Code Art. 2B, § 10-405 as amended by H.B. 1133."
The Legend v Miller opinion (and partial dissent) can be read here.