An exotic dance club in North Carolina called the Gentlemen’s Playground will challenge a 4th U.S. Circuit Court of Appeals ruling that rejected two of its three arguments against a city ordinance for the licensing of sexually oriented businesses.
Florida-based free speech attorney Gary Edinger, who represents the Gentlemen’s Club in Rocky Mount, had argued that the city’s sex-business ordinance was written so broadly that it could apply to ballet performances.
The ordinance refers to “adult live entertainment” involving “specified sexual activities,” such as the “fondling or other erotic touching of human genitals, pubic regions, buttocks or female breasts.”
“So what if you’re a ballet producer and your ballet is going to have nudity or something erotic? Usually, it would not be appropriate to call a ballet company an adult business,” Edinger said in an interview.
He’d asked that the ordinance be stricken as an unconstitutional violation of free speech. But the 4th Circuit, in a majority decision written by Judge James Wynn Jr., upheld the ordinance and its licensing requirement, finding that no matter how broad a net it cast, it did not significantly encroach on any constitutional rights.
Wynn wrote in the April 27 opinion that “regardless of whether the language of the ordinance in fact sweeps in venues that display mainstream performances, the licensing requirement does not significantly burden the speech of either exotic-dancing establishments … or venues that display mainstream performances that may involve ‘erotic touching’ — like ballets, concerts, or theatrical productions — and therefore does not run afoul of the First Amendment.”
‘Frequent celebratory slaps on the buttocks’
In a concurring opinion, Circuit Judge Stephanie Thacker took issue with majority’s “perplexing suggestion the ordinance’s use of the phrase ‘fondling or erotic touching’ may render the ordinance applicable to nonsexual touching in mainstream artistic performances.”
“Quite simply, ‘erotic touching,’ like ‘fondling,’ has a sexual connotation that is plainly not present in mainstream artistic performances,” she wrote. “Dancers performing a lift during a ballet surely do not intend for their touching to incite sexual arousal in the manner contemplated by the ordinance.”
She added that under Gentlemen’s Playground’s broad interpretation of the statute, athletes’ “frequent celebratory slaps on the buttocks” could cause sports arenas to be classified as sexually oriented businesses.
‘At variance with any other … case in the country’
Edinger, who has carved out a niche representing adult businesses in First Amendment cases, called the opinion “outside the mainstream,” adding that it “really threatens regular speech as well as adult entertainment.”
He asserted that the ruling is unique in that it creates a “burdensome requirement,” which he said is “at variance with any other overbreadth case in the country.” In other cases in different jurisdictions, he said the court’s analysis has ended with a finding that an ordinance cast too wide a net and could encroach on constitutional rights.
As Edinger prepared a petition for a rehearing en banc before the full 4th Circuit, the city’s attorney, Nick Ellis of Poyner Spruill in Rocky Mount, dismissed the idea that the court had created a new legal theory.
“I think what the court recognized was that this wasn’t free speech. This was a licensing ordinance. And the two are not the same,” he said. “I don’t think the court has done anything other than apply precedential case law to the facts of our case.”
Edinger had also argued, unsuccessfully, that a provision in the ordinance requiring the owners of adult businesses to be at least 21 “infringes upon equal protection and the First Amendment rights of adult citizens to free expression.” He said other courts have struck down similar age restrictions for patrons and performers at adult businesses.
“To me, the existing precedent for patrons and performers seemed persuasive,” Edinger added.
But Wynn wrote that the age restriction for proprietors was “rationally related to Rocky Mount’s interest in ensuring that sexually-oriented-business owners are of legal drinking age, given alcohol’s availability at most such venues.”
“I think what the court did was recognize that local municipalities have a very real reason to regulate these businesses, that the harmful impact of these businesses on the community is clearly unquestioned and that ownership of such a business is different than going into the business for 30 minutes of entertainment,” Ellis said.
One out of three ain’t good enough
While Gentlemen’s Playground stumbled at the 4th Circuit, the club prevailed on its argument that a license denial provision in the ordinance gave Rocky Mount’s police chief too much discretion in determining whether a license applicant complied with “all applicable laws.”
Wynn wrote that while the court was “mindful that Rocky Mount has a valid interest in ensuring compliance with all laws, we agree with [Gentlemen’s Playground] that the denial provision vests impermissible discretion in the police chief to choose on a case-by-case basis which laws apply in reviewing a particular application and thus is too broad to survive constitutional scrutiny.”
Wynn remanded the case to the trial court for a determination about whether the provision could be severed from the ordinance.
“We think the ordinance will be able to survive,” Ellis said. “I think the tone of the opinion from the court would suggest that this is not a basis to have the entire ordinance declared unconstitutional.”
Edinger, meanwhile, shrugged at what he apparently deemed to be a small victory.
“A win is a win on that, but it doesn’t break any new ground as far as the law is concerned,” he said. “We’re not going to rush right back to the trial court.”
The 28-page decision is Am. Entertainers LLC v. City of Rocky Mount, N.C. (Lawyers Weekly No. 001-076-18). An opinion digest is available at sclawyersweekly.com.
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