A state Appeals Court has split the difference in a local ordinance aimed at adult entertainment - it upheld a ban on totally nude dancing but also ruled the law was broad enough to impinge on other acts the Constitution might protect.
"I don't believe it is the greatest decision," says Mike Ross of XXXPolitics.com, "but (it is) one that is on our side and I believe should be known by the (adult entertainment) community."
The case involved a suit filed by Pat's Lounge against the state. The appeals court held that totally nude dancing isn't exactly a First Amendment right - but that in trying to stop it the state Pittsburg ordinance unduly struck at other adult matters too broadly to pass constitutional muster.
"A city need not show specific examples of pernicious secondary effects caused by a drinking establishment before it can regulate that business," the court held. "The city may rely on evidence from other cities so long as such evidence is reasonably believed to be relevant to the problem addressed. (But a)n ordinance which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is vague and violative of due process."
The court held that that part of the law banning X-rated films is unconstitutionally "overbroad," as were parts of the law outlawing showing films or photos displaying "certain parts of the human anatomy" where liquor is sold. The court also ruled overbroad the part of the law which bans "the touching, caressing, or fondling of certain parts of the human anatomy" where liquor is sold or served, saying it meant that close dancing between spouses would be criminalized.
"An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions," the court wrote. "A successful overbreadth challenge can thus be made only when …the protected activity is a significant part of the law's target, and …there exists no satisfactory method of severing the law's constitutionality from its unconstitutional applications."
