Saturday, April 16, 2011

Marlyand Strip Club Law Stretches Too Far, Court Says

by Matthew Wargo

An injunction on a Maryland law aimed at controlling conduct and attire where alcoholic beverages are served was upheld by the United States Court of Appeals for the Fourth Circuit in February, affirming a decision established in 2009 by a federal district court.

In Legend Night Club v. Miller, 09-1540, the courts’ decision ruled that the law restricting the attire and conduct of performers in strip clubs is unconstitutional, court records show.

The law limited “the range of permissible conduct, attire, and entertainment at establishments licensed to serve alcoholic beverages,” according to court documents. Under the Maryland law, establishments in violation of the stature would have their alcohol license revoked.

In 2005, the plaintiffs, Legend Night Club and the Classics Night Club, filed complaints challenging the violation of their First Amendment rights. The two adult entertainment clubs, located in Prince George’s County, were at risk of losing their clubs and their liquor license. A preliminary injunction was granted in March 2006, preventing the state from enforcing the law, court records report.

Later that year, the State of Maryland defended the law and its constitutionality. The legislature amended the law to address secondary effects brought on by strip clubs that serve alcohol.

In April 2009, a federal district court ruled the amended law was overbroad and not “readily susceptible to a limiting construction.” However, the defendants contested that even if the law was overbroad on its face, it still was capable of passing tests to ensure its constitutionality. The district court said the defendants could not produce any evidence of secondary effects. A permanent injunction was issued by the district court, court documents show.

Legend v. Miller reached the Court of Appeals in September 2010. During this trial, the night clubs continued to argue that the original was overbroad and unconstitutional, while the defendants argued the law was changed to control the negative secondary effects associated with alcohol-serving establishments.

In the opinion, issued by Judge Wynn in February, the court decided the statute in Prince George’s County was too broad, prohibited expression protected by the First Amendment, and could have applied to stage performances, like ballets and dramas. Judge Wynn also addressed the fact that the state was asking to only regulate the law when it came to adult entertainment establishments. He said the state was asking to “ignore the plain language of the statute and rely instead on the government’s assurances that the statute would not be unconstitutionally enforced” (Legend v. Miller, 13).

The majority came to the conclusion that the Maryland law prohibited a “broad swath of expression” protected by the First Amendment. Citing Giovani Carandola v. Bason, 303 F.3d 507 (4th Cir. 2002) as a precedent, Judge Wynn affirmed the law would “impose restrictions that extend well beyond strip clubs and other establishments primary offering adult entertainment” (Legend v. Miller, 12), plainly stating that fully-clothed performers, combined with integral parts of a production, can stimulate sexual behavior. For example, one dancer touches another dancer’s butt during a lift, court documents explain.

As for the case of secondary effects, the opinion explains that the defendant did not present any relevant studies to show these entertainment clubs serving alcohol contributed harmful effects to the area. Using Erie v. Pap’s A. M., 529 U.S. 277 (2000) as a precedent, the court declared the state did not make an effort to explain the need to control any secondary effects; in Erie v. Pap, the city stated its purpose in the preamble.

In addition, the court ruled in favor of the injunction by also using Broadrick v. Oklahoma, 413 U.S. 601 (1973), as a precedent. Broadrick v. Oklahoma ruled that if a law was overbroad and could not be declared constitutional through “partial invalidation” or “limiting construction” that “any enforcement” is “totally forbidden.” Therefore, enforcing the law is “totally forbidden” because the was facially overbroad.

Political writer Joseph Pope weighed in on the Legend v. Miller decision; When it comes to broad laws, the Supreme Court has instructed courts to use the overbreadth doctrine “sparingly and only as a last resort” because it allows the courts to act outside their constitutional authority. Pope says, in this case, the broad statute attempted to control conduct, in addition to speech. For the courts to declare overbreadth, the violation had to be substantial and reach a substantial range of protected conduct. In addition to the plaintiff, overbreadth cases also apply “to a broader range of protected activity in which others are engaged or may in the future become engaged” (Pope). The Maryland law not only applied to adult entertainment establishments, but to ballets, plays, etc.

This case was decided February 17, 2011, with the United States Court of Appeals for the Fourth Circuit upholding the permanent injunction enforced by the district court.


Coyle, Marcia. "4th Circuit Finds Maryland Strip Club Law Overbroad." The Blog of Legal Times. ALM, 17 Feb 2011. Web. 16 Apr 2011.

Legend Night Club v. Miller. 09-1540

Pope, Joesph. "Fourth Circuit Strikes Down Maryland Statute Regulating Adult Entertainment." Williams Mullen: Appellate Law Blog. N.p., 22 Feb 2011. Web. 16 Apr 2011.

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