RICHMOND, VA — In a ruling issued December 15th, the U.S. Court of Appeals for the Fourth Circuit upheld a North Carolina law banning nude dancing, “simulated” sexual activity, and “fondling” of certain body parts in the state’s strip clubs.The case, Carandola v. Fox, involves a long running battle between Giovani Carandola, Ltd., operator of Christie’s Cabaret in Greensboro, NC, and the North Carolina Alcoholic Beverage Control Commission that began in November, 2000.

According to court documents, on November 11, 2000, an enforcement officer from the Commission witnessed dancers at Christie’s performing in ways that violated what was then state law. When the club received a violation notice, Carandola filed suit, asserting that the statute and its regulatory scheme violated the First Amendment rights of the club and its performers.

Carandola succeeded in obtaining a preliminary injunction from the District Court, enjoining enforcement of the statute and regulation under the law, as the court reasoned that Carandola would likely prevail in its overbreadth challenge of the statute.

The prior case, referred to by the Court as “Carandola I,” the Fourth Circuit affirmed the lower court’s ruling, concluding that the statutory and regulatory restrictions extended “far beyond bars and nude dancing establishments.”

In response to the Fourth Circuit’s ruling, the North Carolina General Assembly crafted a new statute, N.C. Gen. Stat. § 18B-1005.1, that included many of the same prohibitions the statute enjoined by the Court contained, but is explicitly narrower than its stricken predecessor.

After the new law was passed, Carandola again sued, arguing that the revised statute still violated both the First and Fourteenth Amendments.

In its ruling on Carandola II, the District Court upheld the subsection of the new statute banning nudity in strip clubs, concluding that the state’s interest in mitigating “negative secondary effects” associated with the combination of adult entertainment and alcohol was furthered by the prohibition of nudity.

The District Court, however, enjoined the enforcement of other subsections of the statute, (a)(2) and (a)(3), finding both subsections “facially vague” and “overbroad.”

The Commission appealed the District Court’s determination that the subsections in question were too vague and broad, while Carandola cross-appealed, arguing that the District Court should also have enjoined the subsection banning nudity – subsection (a)(1).

The Fourth Circuit, in its opinion issued last week, affirmed in part, reversed in part, and vacated in part the District Court’s ruling in Carandola II.

The Fourth Circuit panel, which included Judge Paul V. Niemeyer, Judge Diana Gribbon Motz, and Judge William B. Traxler, Jr., parted with the District Court Judge N. Carlton Tilley with respect to the vagueness and overbreadth claims made by Carandola, while concurring with Tilley that the statute’s ban on nudity was constitutionally permissible.

“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,” the Fourth Circuit panel states in its opinion, authored by Judge Motz.

In the decision, the panel notes that the “Supreme Court and many other courts have held that the word ‘simulate’ is sufficiently clear when used in similar statutory prohibitions,” and observes that in the appeal, “Carandola fails to cite, and we have not found, a case in which any court has held ‘simulate’ vague in a similar context.”

Similarly, the panel found that the word “fondle” is not overly vague, observing that the new NC statute “uses the single word ‘fondling’ in conjunction with specified erogenous zones, indicating that it aims to prevent overt sexual contact, something the ordinary person likely understands.”

Citing on Kev, Inc. v. Kitsap County (which held that provisions of an ordinance prohibiting erotic dancers from “fondling” and “caressing” any patron were not unconstitutionally vague) and J.L. Spoons, Inc. v. O’Connor (holding that the word “fondle” is sufficiently clear, and noting that “[r]egulatory language need not be mathematically precise”), the panel observed that “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.”

On the question of overbreadth, the panel again found that Judge Tilley erred in his ruling, finding that the new statute adopted by the NC General Assembly following the Fourth Circuit’s ruling in Carandola I had cured the previous statute’s overbreadth.

In its ruling, the Fourth Circuit notes that “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.”

Further, the panel continues, the Commission now “acknowledges that subsection (a)(2)’s prohibition on ‘simulate[d]’ sexual acts only applies to performances ‘that give the realistic impression or illusion that sexual intercourse [or masturbation, etc.] is being performed for the audience’” and “recognizes that subsection (a)(3)’s prohibition on ‘fondling’ of buttocks, genitals, breasts, etc. only bars a performer from actually ‘manipulating specified erogenous zones.’”

The panel found that under the Commission’s current interpretation, “the new statute has no prohibitory 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.’…. [I]n 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 statute’s ambit unless it gave the audience the realistic impression that Madonna was actually performing a sexual act.”

Carandola rebutted in his argument that the court could not accept the Commission’s construction and interpretation of “simulates” and/or fondling “not because the statute is not ‘readily susceptible’ to this construction, but because the ‘evidentiary record refutes’ this construction.”

The panel didn’t buy Carandola’s argument, because the “evidentiary record” on which Carandola relied pertained strictly to the old statute and restrictions.

Thus, the panel stated in its opinion; “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 restrictions.”

The panel observed that in upholding the injunction prohibiting enforcement of the previous statute, the Court suggested (citing Farkas v. Miller and J&B Entertainment v. City of Jackson) 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.’”

“The North Carolina legislature took this suggestion to heart,” the panel wrote in its opinion, “and provided an exception in the new statute for ‘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.’”

Carandola argued that the exception provided by the legislature in the new statute is “exceedingly narrow,” an argument with which Judge Tilley agreed, but which the Fourth Circuit panel found unpersuasive.

Citing New York v. Ferber, the Fourth Circuit panel held that “the new statute, with the limited constructions of subsections (a)(2) and (a)(3) proffered by the Commission and the exception in subsection (c), does not ‘reach a substantial number of impermissible applications.’… Accordingly, we reverse the portions of the district court order holding subsections (a)(2) and (a)(3) of the statute unconstitutional as facially overbroad.”

The panel concluded its opinion with a consideration of Carandola’s cross appeal, in which Carandola argued that the District Court should have enjoined enforcement of the subsection of the statute that prohibits any “conduct or entertainment by any person whose genitals are exposed or who is wearing transparent clothing that reveals the genitals.”

In his cross appeal, Carandola contended that the subsection prohibits nudity even when that nudity occurs in the context of a “serious theatrical production or artistic work.” The Fourth Circuit panel disagreed.

“The Supreme Court has upheld general public nudity statutes (i.e., not prohibitions confined to licensed establishments like those at issue here) that required erotic dancers to wear pasties and G-strings,” the panel wrote in its ruling, noting that the Supreme Court has held that the “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.”