First Amendment Victory for Philadelphia Strip Club

The Third Circuit has struck down a lewdness statute as overbroad under the First Amendment, allowing the topless bar that challenged the suit to proceed with its alcoholic breast-exposing activities. The case sort of goes into what a lewdness statute can cover without being unconstitutional -- naked ballet, naked concerts, and naked "ordinary theater" must be exempted, apparently.

More interesting, from my own law geek perspective, is the song-and-dance about distinguishing the case from an earlier Third Circuit case that held a similar New Jersey statute constitutional. The government argued in the current case that the statute was fine because it was only enforced against strip clubs, and thus didn't supress legitimate expressions of nakedness. The court disagreed, saying that the statute, as written, could be enforced against too many different types of entertainment. What saved the New Jersey statute in the previous case was the fact that a New Jersey state court had interpreted the statute as applying only to purely sexual establishments, and with that gloss by the court the statute was not overbroad. The Pennsylvania courts haven't applied a similar interpretation to the statute at issue here.

The case is Conchatta Inc. v. Miller.