(CN) – The 4th Circuit upheld a federal judge’s injunction against “unconstitutionally overbroad” strip club regulations in Maryland that ban the mix of alcohol and adult entertainment, as well as certain simulated sexual acts.
Maryland had amended its laws to forbid nude servers and hostesses, sexual attire simulating erogenous areas, and sexual touching in venues licensed to serve alcohol. The regulations, which were supposed to take effect in October 2005, also ban the simulation of sexual acts such as masturbation, sodomy, bestiality and flagellation, as well as the use of props in adult-themed clubs. Nude entertainers would also be prohibited under the law from being within 6 feet of customers.
The state added a grandfather clause to exempt venues that have been in business under one owner since September 1981, a date that the strip clubs argued had been intentionally chosen to include the Ebony Inn, a club owned by a former Maryland senator.
Legend Night Club and the Classic III Supper Club filed separate suits, which were later consolidated, against the state and Prince George’s County in 2005.
In 2006, the District Court issued a temporary injunction and gave Maryland the opportunity to reconfigure the statute, but it declined to do so, according to court filings. It issued a permanent injunction in 2009.
State and county officials claimed that the statute served a legitimate government interest, linking the combination of nude dancing and alcohol to higher rates of crime, sexual assault and prostitution, and lower property values. The clubs contended, however, that the officials showed no evidence of any such “secondary effects” in Maryland and failed to support their claim with studies.
The District Court in Baltimore determined that the law is unconstitutionally overbroad and that the grandfather clause violates equal protection rights. The state and county appealed to the Richmond, Va.-based federal appeals court, which voted to affirm on Thursday.
A majority opinion from the court’s three-judge panel found that the law is not worded to protect artistic performances, such as ballets or plays – for example “a drama depicting the horrors of rape.”
“While defendants argue that the statute has been, and will be, enforced only against adult entertainment establishments, they do not propose a way to read the statute such that it would apply only to those licensees,” Judge James Wynn wrote for the majority.
Senior Judge Clyde Hamilton partially dissented from his colleagues, stating that only a segment of the statute, including the simulation of sexual acts, impedes on artistic expression. He added that the offending grandfather clause could simply be severed. The majority countered that “these efforts to save the statute stand in stark contrast to the inaction of the Maryland legislature,” which failed to rewrite the law when given the opportunity.