CONCHATTA INC., t/d/b/a Club Risque on the Delaware; Gail Baker; Sabrina Barrar v. Col. Jeffrey B. MILLER, in his Official Capacity as Commissioner, Pennsylvania State Police
No. 05-1803
United States Court of Appeals, Third Circuit
Argued April 25, 2006. Filed Aug. 15, 2006.
Conchatta, Inc.; Gail Baker; Sabrina Barrar, Appellants. * (Amended pursuant to F.R.A.P. 43(c)).
(First Used in 1992; Application for Registration Filed in 1996)
John O.J. Shellenberger, (Argued), Chief Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Thomas W. Corbett, Jr., Attorney General of Pennsylvania, Office of the Attorney General of Pennsylvania, Philadelphia, PA, Attorneys for Appellee.
Before FUENTES, STAPLETON and ALARCON,1 Circuit Judges.
FUENTES, Circuit Judge.
The operator of a club in Philadelphia that features semi-nude dancing, as well as two of its dancers, challenge a Pennsylvania Liquor Code statute and regulation that prohibit “lewd” entertainment at any licensed establishment. Plaintiffs argue that the statute and regulation are unconstitutional both on their face and as applied to plaintiffs. We conclude that the statute and regulation are facially invalid because they are substantially overbroad, punishing a significant amount of protected speech in relation to their legitimate scope.
I. BACKGROUND
Plaintiff Conchatta, Inc. operates Club Risque, a Philadelphia bar where erotic “striptease” performances are shown, and plaintiffs Gail Baker and Sabrina Barrar are dancers who have performed at Club Risque. During the performances, the dancers take off their clothes, leaving only G-strings, liquid latex covering their nipples, and high-heeled shoes. Club Risque prohibits physical contact between the dancers and patrons.
In March 2001, plaintiffs (hereinafter “Conchatta“) filed suit in the United States District Court for the Eastern District of Pennsylvania against the Commissioner of the Pennsylvania State Police (hereinafter “the Commissioner“),1 seeking preliminary and permanent injunctive and declaratory relief as to the enforcement of
for any licensee, under any circumstances, to permit in any licensed premises or in any place operated in connection therewith any lewd, immoral or improper entertainment....
Conchatta also sought relief as to one of the Statute‘s implementing regulations,
A licensee may not permit an employee, servant, agent, event/tournament/contest participant or a person engaged directly or indirectly as an entertainer in the licensed establishment or a room or place connected therewith, to be in contact or associate with the patrons in the establishment, room or place for a lewd, immoral, improper or unlawful purpose.
Under Pennsylvania law, violation of the Statute is a misdemeanor that can result in a fine of up to five thousand dollars and imprisonment for a period of three months to one year, as well as to suspension or revocation of the liquor license. See
In the District Court, Conchatta alleged that the Statute and Regulation (collectively, the “Challenged Provisions“) are unconstitutional under the First Amendment because they are impermissibly overbroad and vague on their face. Conchatta also alleged that the Challenged Provisions are unconstitutional as applied to it. Following an evidentiary hearing, the District Court denied Conchatta‘s motion for a preliminary injunction in April 2001, concluding that Conchatta had demonstrated neither a likelihood of success on the merits nor that it would suffer irreparable harm without an injunction. The Court declined to address Conchatta‘s overbreadth and vagueness claims. In anticipation of a decision related to the Statute that was due to come down from the Supreme Court of Pennsylvania, the Court stayed further proceedings in the case and closed the matter administratively, subject to a motion to reopen.
In May 2001, Conchatta appealed the District Court‘s denial of its motion for a preliminary injunction. This Court affirmed in a non-precedential per curiam opinion, with a dissent. Conchatta, Inc. v. Evanko, 83 Fed. Appx. 437 (3d Cir. 2003). The majority found that Conchatta had made “a strong case that the statute is overbroad,” but had failed to demonstrate irreparable harm under the preliminary injunction standard. Id. at 441. In dissent, Judge Roth concluded that the Statute was overbroad and also found that the irreparable harm requirement had been satisfied. Id. at 444-46.
The Pennsylvania Supreme Court decision anticipated by the District Court, Purple Orchid, Inc. v. Pennsylvania State Police, 572 Pa. 171, 813 A.2d 801 (2002), was issued in December 2002. There, the court held that the Statute was not unconstitutional under the First Amendment as applied to a bar featuring semi-nude dancing. Id. at 812-13. The Purple Orchid court explicitly declined, however, to consider whether the Statute was unconstitutionally overbroad or vague on its face. Id. at 804-05.
The District Court returned the case to active status, and Conchatta filed a motion for summary judgment in April 2004. The Commissioner then filed a cross-motion for summary judgment. In February 2005, the District Court held that the terms “immoral” and “improper” in the Challenged Provisions were unconstitutionally vague, but that the term “lewd” was not. Conchatta, Inc. v. Evanko, 2005 WL 426452, *2 (E.D. Pa. Feb. 23, 2005). The Court therefore granted Conchatta‘s summary judgment motion in part, ordering that the terms “immoral” and “improper” be excised from the Challenged Provisions, but denied the motion with respect to the remainder of the challenged language. Id. at *3. The Court did not address Conchatta‘s overbreadth claim.
Conchatta now appeals the denial in part of its motion for summary judgment, with respect to the non-excised portions of the Challenged Provisions. The Commissioner does not appeal the District Court‘s order that the terms “immoral” and “improper” be excised. We therefore consider the Challenged Provisions in their new form, with the single term “lewd” replacing the three terms “lewd,” “immoral,” and “improper.”
II. DISCUSSION
A. Overbreadth
“The showing that a law punishes a ‘substantial’ amount of protected free
The Supreme Court has noted, however, that “when considering a facial challenge it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Broadrick, 413 U.S. at 613 (holding that the invalidation of an ordinance on overbreadth grounds is “strong medicine” to be used “sparingly and only as a last resort“).
1. Availability of a Limiting Construction
In determining the scope of a state law challenged for overbreadth, this Court must “consider any limiting construction that a state court or enforcement agency has proffered.”2 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). A narrowing construction can save an otherwise unconstitutional statute by eliminating the statute‘s substantial overbreadth. See Hicks, 539 U.S. at 118-19. If a statute is “readily susceptible” to a limiting interpretation that would make it constitutional, the statute must be upheld, but “we will not rewrite a state law to conform it to constitutional requirements.” Virginia v. Am. Booksellers Ass‘n, 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988).
Although Pennsylvania courts and agencies have addressed the Statute—which has been in effect in Pennsylvania since the early 1950s—on numerous occasions, no clear narrowing construction of the Challenged Provisions has emerged. The Pennsylvania Supreme Court has twice considered the Statute‘s constitutionality. In In re Tahiti Bar, 395 Pa. 355, 150 A.2d 112 (1959), the court rejected an as-applied First Amendment challenge to the Statute by a bar that featured erotic dancing, holding that Pennsylvania‘s authority to regulate liquor consumption gave it almost limitless power to regulate speech where liquor is consumed. Id. at 115-16. The court also concluded that, taken as a whole, the phrase “lewd, immoral, or improper” was not unconstitutionally vague. Id. at 118-19. Without specifically construing the challenged terms, the court upheld the lower court‘s finding that the performance in plaintiffs’ bar was “lewd or
More recently, in Purple Orchid, the Pennsylvania Supreme Court disavowed its analysis in Tahiti Bar, noting that under recent United States Supreme Court precedent, a state does not have plenary authority over the regulation of expression in liquor licensee establishments. Purple Orchid, 813 A.2d at 806; see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 515-16, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). The Purple Orchid court nonetheless upheld the Statute under the First Amendment as applied to a club featuring erotic dancing. Id. at 812-13. The court did not adopt a limiting construction of the Statute, stating only that the Statute “apparently has not been applied to prohibit erotic dancing outright in establishments licensed to serve alcohol. Instead, it has been interpreted by enforcement officials as requiring the dancers to cover themselves, at a minimum, with what are commonly known as ‘pasties’ and a ‘G-string.‘” Id. at 803.
In Pennsylvania Liquor Control Board v. J.P.W.G., Inc., 88 Pa.Cmwlth. 385, 489 A.2d 992 (1985), which involved a challenge to a fine imposed under the Statute on a bar featuring topless dancing, the Pennsylvania Commonwealth Court noted that “we have found no case law and none has been cited to us construing the terms lewd, immoral or improper as used in the Code.” Id. at 995 (emphasis omitted). Without limiting the scope of those terms, the court stated that “we are convinced that partial nudity of a female dancer in a public bar is at the very least improper and, in our opinion, also falls within the broad dictionary language defining immoral and lewd.” Id. (footnote omitted).
Other decisions in the lower Pennsylvania courts have similarly considered whether some form of erotic dancing falls within the terms of the Challenged Provisions without explicitly construing or narrowing those terms. See, e.g., Rising Sun Entm‘t, Inc. v. Pa. Bureau of Liquor Control Enforcement, 829 A.2d 1214, 1217 (2003) (stating that “topless dancing performed in licensed establishments can be lewd, immoral or improper entertainment per se“); BJJ Enter., Inc. v. Commonwealth, 85 Pa.Cmwlth. 372, 481 A.2d 1253, 1255 (1984) (upholding revocation of liquor license under “lewd, immoral or improper” language where performances included “topless dancing girls who wore panties or G-strings which permitted one to see the pubic area“); Pa. Liquor Control Bd. v. Tris-Dad, Inc., 68 Pa.Cmwlth. 176, 448 A.2d 690, 691-92 (1982) (finding statutory standard satisfied where there was evidence that female dancers wore wet nightgowns and displayed various parts of their bodies during their performances). We have found no Pennsylvania court or agency holdings that contain an explicit narrowing construction of the Challenged Provisions. Cf. 181 South v. Fischer, 2006 WL 1984497, at *6 (3d Cir. Jul.18, 2006) (recognizing a narrowing construction of statute where state court explicitly construed a prohibition on “lewd and immoral activities” as a prohibition on entertainment where “‘the predominant object and natural effect upon the observers-patrons of one portion of the performance [is] erotic excitation.‘“) (citation omitted).3
The Commissioner asserts that the Liquor Board does not intend to enforce the Challenged Provisions against “legitimate” theatrical or concert performances. However, the mere fact that an agency does not currently intend to apply a statute in an unconstitutional manner cannot have the effect of an explicit limiting construction. See Odle v. Decatur County, Tenn., 421 F.3d 386, 397 (6th Cir. 2005) (“neither proof that an ordinance as currently applied has no unconstitutional effect, nor assurances offered by the relevant local authorities that the ordinance will not be put to such an effect in the future, constitute ‘constructions’ of the ordinance, as that term is ordinarily understood“); see also Ways v. City of Lincoln, Neb., 274 F.3d 514, 519-20 (8th Cir. 2001) (rejecting city‘s assurances that a statute was “not intended to apply to artistic venues” in considering an overbreadth challenge). But see SOB, Inc. v. County of Benton, 317 F.3d 856, 865 (8th Cir. 2003) (rejecting an overbreadth challenge where a county affidavit noted the absence of theaters in the county and averred a lack of intention to enforce the regulation against theatrical productions with “serious artistic merit“). In short, the current enforcement intentions of the Liquor Board are of no relevance to our analysis of the scope of the Challenged Provisions.
Thus, we conclude that no limiting construction of the Challenged Provisions has been established by Pennsylvania state courts or agencies. Nor are the plain terms of the Challenged Provisions “readily susceptible” to such a construction; the general prohibition on “lewd” entertainment in any licensed establishment does not lend itself to an obvious narrowing interpretation. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 517 (4th Cir. 2002) (“[W]e cannot adopt a limiting construction unless a measure is ‘readily susceptible’ to such an interpretation by state courts, and certainly cannot rewrite state law.“) (internal citation omitted); cf. Schultz v. City of Cumberland, 228 F.3d 831, 850 (7th Cir. 2000) (finding statute susceptible to limiting construction where statutory prohibition on commercial establishments “regularly featur[ing]” nudity could be construed more narrowly as applying only to establishments “always featur[ing]” nudity) (emphasis added).
2. Scope of the Challenged Provisions
As no narrowing construction is available, we must consider the scope of the Challenged Provisions based on their plain terms. At the outset, we note that Challenged Provisions proscribe “lewd entertainment” in a notably broad array of contexts. The parties agree that approxi-
As for what expression falls within the prohibition on “lewd entertainment,” we, like the plaintiffs, find this to be a difficult question to answer. The Pennsylvania courts have construed “lewd entertainment” to include entertainment involving fully exposed breasts, genital exposure, or genital touching. As noted above, however, the statutory definition has not been limited to include only entertainment with those characteristics, and this exacerbates the chilling effect on a wide range of First Amendment protected expression when the Challenged Provisions are applied to artistic, theatrical, and other non-adult entertainment venues. We need not here predict, however, how expansively the Pennsylvania courts might construe the prohibition because we conclude, in light of the broad array of forms of entertainment to which the prohibition is applicable, that even assuming the Challenged Provisions proscribe no more than entertainment involving nudity or genital touching, those Provisions are unconstitutionally overbroad.
We accept the Commissioner‘s assertion that the Challenged Provisions were enacted to limit negative secondary effects resulting from the combination of “lewd” entertainment and consumption of alcohol.6 See Purple Orchid, 813 A.2d at 810 (concluding that one of the Statute‘s purposes is “to address the negative secondary effects that follow when nude dancing is performed in establishments that are licensed to serve alcohol“). Such an intention is unrelated to the content of the affected expression. See City of Erie, 529 U.S. at 296 (holding that a regulation aimed at the secondary effects of adult entertainment establishments was “unrelated to the suppression of the erotic message” and therefore content-neutral) (plurality opinion); Carandola, 303 F.3d at 515 (finding a statute to be content-neutral because it targeted the secondary effects of lewd conduct on liquor-licensed premises).
Where, as here, a regulation burdens expression but is content-neutral, we apply the intermediate scrutiny standard enunciated by the Supreme Court in United States v. O‘Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See Texas v. Johnson, 491 U.S. 397, 407, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (stating that O‘Brien test applies where “the governmental interest in question [is] unconnected to expression“); 181 South, 454 F.3d 228, 2006 WL 1984497, at *4-5 (applying O‘Brien test to liquor-license regulation of adult entertainment establishments).7 Under the O‘Brien test, a regulation is constitutional only if (1) “it is within the constitutional power of the Government“; (2) it “furthers an important or substantial governmental interest“; (3) “the governmental interest is unrelated to the suppression of free expression“; and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” O‘Brien, 391 U.S. at 377; see also 181 South, 454 F.3d 228, 2006 WL 1984497, at *4. The fourth element of this test is particularly relevant to our overbreadth inquiry here.8
We conclude that the Challenged Provisions are substantially overbroad under the fourth O‘Brien requirement because the asserted government interest is not applicable to a large number of affected establishments. With respect to nude or
Several of our sister circuits have similarly found that a secondary effects rationale cannot justify regulation of such a broad array of ordinary entertainment venues. See, e.g., Schultz, 228 F.3d at 849 (“When the government restricts speech not associated with harmful secondary effects, then the government cannot be fairly said to be regulating with those secondary effects in mind and the regulation extends beyond its legitimate reach.“); Carandola, 303 F.3d at 516-17 (finding likelihood of success on overbreadth claim where liquor-license regulation swept “far beyond bars and nude dancing establishments” to burden “a multitude of mainstream musical, theatrical, and dance productions—from musical comedy to ballet to political satire to flamenco dance“); Odle, 421 F.3d at 399 (finding an ordinance unconstitutionally overbroad because it “‘makes no attempt to regulate only those expressive activities associated with harmful secondary effects and includes no limiting provisions. Instead, [it] sweeps within its ambit expressive conduct not generally associated with’ the kinds of harmful secondary effects it was designed to prevent.“) (quoting Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 136 (6th Cir. 1994)); Ways, 274 F.3d at 519-20 (rejecting secondary effects rationale and finding ordinance to be unconstitutionally overbroad because it could be applied to “theater performances, ballet performances, and many other forms of live entertainment“).
Based on the reasoning above, we conclude that the Challenged Provisions “punish[] a ‘substantial’ amount of protected free speech, ‘judged in relation to [their] plainly legitimate sweep,‘” and that they are therefore unconstitutionally overbroad.9
In addition to its facial overbreadth claim, Conchatta asserts that the Challenged Provisions are unconstitutional as applied, and that the Challenged Provisions are unconstitutionally vague on their face. Because we strike down the Challenged Provisions as substantially overbroad, we need not consider either of these claims.
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the District Court with respect to the denial in part of Conchatta‘s motion for summary judgment, and we remand the case for further proceedings consistent with this opinion.
FUENTES
CIRCUIT JUDGE