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Exotic Dance Club Loses Appeal Over Alcohol Issue
By: Layne Winklebleck (Free Speech Coalition)
Philadelphia, Pa. –– The 3rd U.S. Circuit Court of Appeals has upheld a summary judgment by U.S. District Judge Robert B. Kugler of the District of New Jersey in 181 South Inc. v. Fischer, a challenge of a New Jersey law prohibiting “lewdness or immoral activity" — interpreted to include exotic dancing — in clubs that serve alcohol. The case involves an Atlantic City tavern, the Moulin Rouge, which had been fined by state Alcohol Beverage Control after an undercover operation by state police, who observed Moulin Rouge exotic dancers engaging in what the police determined to be prohibited activity under the regulations. Dancers were seen to rub their breasts and crotch areas while onstage, “simulating masturbation,” and to straddle patrons and push their pelvis into the customer’s laps, “simulating sexual intercourse.” These more or less standard exotic dance and lap-dance components fell under the category of prohibited “lewd or immoral activity” because New Jersey state courts have ruled that lewd and immoral activity includes entertainment where the “predominant object and natural effect upon the observers-patrons of one portion of the performance [is] erotic excitation.”
The Moulin Rogue owners, 181 South, Inc, appealed Kugler’s judgment, claiming that the District Court erred and that the New Jersey regulations violate the First Amendment, are overbroad and are constitutionally vague, all reasonable objections from our admittedly biased viewpoint, especially as regards the stage dancing, since rubbing breasts and “simulating masturbation,” is clearly a protected form of erotic expression.
The appeals court got around this problem by simply clarifying that it was not the freedom of erotic expression that was at issue, but the serving of alcohol.
Wrote Circuit Judge Julio M. Fuentes: “New Jersey’s interest in enacting the Regulation is unrelated to the suppression of free expression, because the Regulation does not prohibit individuals from participating in “lewd or immoral activity.” Rather, it only prohibits such activity from taking place on the premises of liquor-licensed establishments. In other words, the Regulation “is not a restriction of erotic expression, but a prohibition of non-expressive conduct (i.e., serving and consuming alcohol) on premises where such expression takes place.”
Even if the only issue was whether or not exotic dance clubs can serve alcohol, the law still seems extremely broad, since it would appear to rope in mainstream shows as well as dance clubs. Would Madonna be allowed to dance and sing in Atlantic City Casinos where liquor is served? We have to think she would be. Yet, it’s hard to imagine a Madonna show without any crotch grabbing. Testifying as an expert witness in the case, University of Maryland scholar Judith Lynne Hanna, Ph.D, said that the regulation, as interpreted by the New Jersey courts, was "so broad as to encompass virtually any human performing art. The instrument of dance/acting/opera/performance art and sex are both the human body, and human performance could be interpreted as being sexually exciting," said Hanna.
Moulin Rouge attorney Daniel A. Silver agreed that the appeals panel erred in its analysis of whether the regulations are overbroad. He said he was "very disappointed" by the decision and intends to seek re-argument before the full 3rd Circuit.
Silver noted that Fuentes seemed to have misunderstood one of the key facts in the case because his opinion begins by saying the case "involves topless dance performances that include sexually explicit dance routines." In fact, Silver said, none of the Moulin Rouge’s dancers are topless.