                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2006

Conchatta Inc v. Miller
Precedential or Non-Precedential: Precedential

Docket No. 05-1803




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                                        PRECEDENTIAL


     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No. 05-1803



              CONCHATTA INC.,
  t/d/b/a CLUB RISQUE ON THE DELAWARE;
        GAIL BAKER; SABRINA BARRAR


                         v.

     *COL. JEFFREY B. MILLER, IN HIS
         OFFICIAL CAPACITY AS
COMMISSIONER, PENNSYLVANIA STATE POLICE

            Conchatta, Inc.; Gail Baker;
                 Sabrina Barrar,

                                     Appellants

      * (Amended pursuant to F.R.A.P. 43(c))


   On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
               (D.C. No. 01-cv-01207)
   District Court Judge: Honorable John P. Fullam



               Argued April 25, 2006
     Before: FUENTES, STAPLETON and ALARCÓN,1
                    Circuit Judges.

                   (Filed: August 15, 2006)



J. Michael Murray (ARGUED)
Steven D. Shafron
Raymond Vasvari
Berkman Gordon Murray & DeVan
55 Public Square, Suite 2121
Cleveland, OH 44113

ATTORNEYS FOR APPELLANTS

John O.J. Shellenberger (ARGUED)
Chief Deputy Attorney General
Calvin R. Koons
Senior Deputy Attorney General
John G. Knorr, III
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Thomas W. Corbett, Jr.
Attorney General of Pennsylvania
Office of the Attorney General of Pennsylvania
21 South 12th Street
Philadelphia, PA 19107

ATTORNEYS FOR APPELLEE



                 OPINION OF THE COURT



      1
        The Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.


                               2
FUENTES, Circuit Judge.

        The operator of a club in Philadelphia that features semi-
nude dancing, as well as two of its dancers, challenge a
Pennsylvania Liquor Code statute and regulation that prohibit
“lewd” entertainment at any licensed establishment. Plaintiffs
argue that the statute and regulation are unconstitutional both on
their face and as applied to plaintiffs. We conclude that the
statute and regulation are facially invalid because they are
substantially overbroad, punishing a significant amount of
protected speech in relation to their legitimate scope.

                       I. BACKGROUND

       Plaintiff Conchatta, Inc. operates Club Risque, a
Philadelphia bar where erotic “striptease” performances are
shown, and plaintiffs Gail Baker and Sabrina Barrar are dancers
who have performed at Club Risque. During the performances,
the dancers take off their clothes, leaving only G-strings, liquid
latex covering their nipples, and high-heeled shoes. Club Risque
prohibits physical contact between the dancers and patrons.

        In March 2001, plaintiffs (hereinafter “Conchatta”) filed
suit in the United States District Court for the Eastern District of
Pennsylvania against the Commissioner of the Pennsylvania
State Police (hereinafter “the Commissioner”),1 seeking
preliminary and permanent injunctive and declaratory relief as to
the enforcement of 47 Pa. Cons. Stat. Ann. § 4-493(10) (2005)
(hereinafter “the Statute”), which provides that it shall be
unlawful:


       1
          The Commissioner is an appropriate defendant here
because enforcement of the relevant statutory provisions is
entrusted to the Bureau of Liquor Control Enforcement, which is
a division of the Pennsylvania State Police. See 47 Pa. Cons. Stat.
Ann. § 2-211 (2005). Defendant Col. Jeffrey B. Miller has replaced
the original defendant in this case, Col. Paul J. Evanko, as the State
Police Commissioner.

                                  3
       for any licensee, under any circumstances, to
       permit in any licensed premises or in any place
       operated in connection therewith any lewd,
       immoral or improper entertainment . . . .

Conchatta also sought relief as to one of the Statute’s
implementing regulations, 40 Pa. Code § 5.32(b) (2006)
(hereinafter “the Regulation”), which provides in pertinent part:

       A licensee may not permit an employee, servant,
       agent, event/tournament/contest participant or a
       person engaged directly or indirectly as an
       entertainer in the licensed establishment or a room
       or place connected therewith, to be in contact or
       associate with the patrons in the establishment,
       room or place for a lewd, immoral, improper or
       unlawful purpose.

       Under Pennsylvania law, violation of the Statute is a
misdemeanor that can result in a fine of up to five thousand
dollars and imprisonment for a period of three months to one
year, as well as to suspension or revocation of the liquor license.
See 47 Pa. Cons. Stat. Ann. § 4-494(a), (b) (2005). Violation of
the Regulation can also result in a fine and license suspension or
revocation. The Commissioner asserts that there have been no
criminal convictions under the challenged portions of the Statute
and Regulation, and that they are enforced solely through a civil
regulatory process.

       In the District Court, Conchatta alleged that the Statute
and Regulation (collectively, the “Challenged Provisions”) are
unconstitutional under the First Amendment because they are
impermissibly overbroad and vague on their face. Conchatta also
alleged that the Challenged Provisions are unconstitutional as
applied to it. Following an evidentiary hearing, the District Court
denied Conchatta’s motion for a preliminary injunction in April
2001, concluding that Conchatta had demonstrated neither a
likelihood of success on the merits nor that it would suffer
irreparable harm without an injunction. The Court declined to
address Conchatta’s overbreadth and vagueness claims. In
anticipation of a decision related to the Statute that was due to

                                 4
come down from the Supreme Court of Pennsylvania, the Court
stayed further proceedings in the case and closed the matter
administratively, subject to a motion to reopen.

       In May 2001, Conchatta appealed the District Court’s
denial of its motion for a preliminary injunction. This Court
affirmed in a non-precedential per curiam opinion, with a
dissent. Conchatta, Inc. v. Evanko, 83 Fed. App’x 437 (3d Cir.
2003). The majority found that Conchatta had made “a strong
case that the statute is overbroad,” but had failed to demonstrate
irreparable harm under the preliminary injunction standard. Id. at
441. In dissent, Judge Roth concluded that the Statute was
overbroad and also found that the irreparable harm requirement
had been satisfied. Id. at 444-46.

       The Pennsylvania Supreme Court decision anticipated by
the District Court, Purple Orchid, Inc. v. Pennsylvania State
Police, 813 A.2d 801 (Pa. 2002), was issued in December 2002.
There, the court held that the Statute was not unconstitutional
under the First Amendment as applied to a bar featuring semi-
nude dancing. Id. at 812-13. The Purple Orchid court explicitly
declined, however, to consider whether the Statute was
unconstitutionally overbroad or vague on its face. Id. at 804-05.

       The District Court returned the case to active status, and
Conchatta filed a motion for summary judgment in April 2004.
The Commissioner then filed a cross-motion for summary
judgment. In February 2005, the District Court held that the
terms “immoral” and “improper” in the Challenged Provisions
were unconstitutionally vague, but that the term “lewd” was not.
Conchatta, Inc. v. Evanko, No. 01-01207, 2005 WL 426452, *2
(E.D. Pa. Feb. 23, 2005). The Court therefore granted
Conchatta’s summary judgment motion in part, ordering that the
terms “immoral” and “improper” be excised from the
Challenged Provisions, but denied the motion with respect to the
remainder of the challenged language. Id. at *3. The Court did
not address Conchatta’s overbreadth claim.

      Conchatta now appeals the denial in part of its motion for
summary judgment, with respect to the non-excised portions of
the Challenged Provisions. The Commissioner does not appeal

                                5
the District Court’s order that the terms “immoral” and
“improper” be excised. We therefore consider the Challenged
Provisions in their new form, with the single term “lewd”
replacing the three terms “lewd,” “immoral,” and “improper.”

                        II. DISCUSSION

                        A. Overbreadth

        “The showing that a law punishes a ‘substantial’ amount
of protected free speech, ‘judged in relation to the statute’s
plainly legitimate sweep,’ suffices to invalidate all enforcement
of that law, ‘until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression.’” Virginia v.
Hicks, 539 U.S. 113, 118-19 (2003) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 613, 615 (1973)). A litigant may
challenge a statute as substantially overbroad under this principle
“even though the conduct of the [litigant] is clearly unprotected
and could be proscribed by a law drawn with the requisite
specificity.” New York v. Ferber, 458 U.S. 747, 769 (1982).
This broad standing rule is rooted in the view that a statute’s
“‘very existence may cause others not before the court to refrain
from constitutionally protected speech or expression.’”
Peachlum v. City of York, Pennsylvania, 333 F.3d 429, 438 (3d
Cir. 2003) (quoting Broadrick, 413 U.S. at 612). Thus, in making
their overbreadth claim, Conchatta may assert the rights of any
liquor licensees subject to the Challenged Provisions.

       The Supreme Court has noted, however, that “when
considering a facial challenge it is necessary to proceed with
caution and restraint, as invalidation may result in unnecessary
interference with a state regulatory program.” Erznoznik v. City
of Jacksonville, 422 U.S. 205, 216 (1975); Broadrick, 413 U.S.
at 613 (holding that the invalidation of an ordinance on
overbreadth grounds is “strong medicine” to be used “sparingly
and only as a last resort”).

       1. Availability of a Limiting Construction

       In determining the scope of a state law challenged for

                                6
overbreadth, this Court must “consider any limiting construction
that a state court or enforcement agency has proffered.”2 Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 n.5 (1982). A narrowing construction can save an
otherwise unconstitutional statute by eliminating the statute’s
substantial overbreadth. See Hicks, 539 U.S. at 118-19. If a
statute is “readily susceptible” to a limiting interpretation that
would make it constitutional, the statute must be upheld, but “we
will not rewrite a state law to conform it to constitutional
requirements.” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
397 (1988).

        Although Pennsylvania courts and agencies have
addressed the Statute–which has been in effect in Pennsylvania
since the early 1950s–on numerous occasions, no clear
narrowing construction of the Challenged Provisions has
emerged. The Pennsylvania Supreme Court has twice
considered the Statute’s constitutionality. In In re Tahiti Bar, 150
A.2d 112 (Pa. 1959), the court rejected an as-applied First
Amendment challenge to the Statute by a bar that featured erotic
dancing, holding that Pennsylvania’s authority to regulate liquor
consumption gave it almost limitless power to regulate speech
where liquor is consumed. Id. at 115-16. The court also
concluded that, taken as a whole, the phrase “lewd, immoral, or
improper” was not unconstitutionally vague. Id. at 118-19.
Without specifically construing the challenged terms, the court
upheld the lower court’s finding that the performance in
plaintiffs’ bar was “lewd or obscene as well as immoral under
any definition of these terms.” Id. at 119 (internal quotation
marks omitted).

       More recently, in Purple Orchid, the Pennsylvania
Supreme Court disavowed its analysis in Tahiti Bar, noting that
under recent United States Supreme Court precedent, a state
does not have plenary authority over the regulation of expression
in liquor licensee establishments. Purple Orchid, 813 A.2d at


       2
       For purposes of Conchatta’s overbreadth claim, we assume
that the terms of the Challenged Provisions are not
unconstitutionally vague.

                                 7
806; see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 515-
16 (1996). The Purple Orchid court nonetheless upheld the
Statute under the First Amendment as applied to a club featuring
erotic dancing. 813 A.2d at 812-13. The court did not adopt a
limiting construction of the Statute, stating only that the Statute
“apparently has not been applied to prohibit erotic dancing
outright in establishments licensed to serve alcohol. Instead, it
has been interpreted by enforcement officials as requiring the
dancers to cover themselves, at a minimum, with what are
commonly known as ‘pasties’ and a ‘G-string.’” Id. at 803.

        In Pennsylvania Liquor Control Board v. J.P.W.G., Inc.,
489 A.2d 992 (Pa. Commw. Ct. 1985), which involved a
challenge to a fine imposed under the Statute on a bar featuring
topless dancing, the Pennsylvania Commonwealth Court noted
that “we have found no case law and none has been cited to us
construing the terms lewd, immoral or improper as used in the
Code.” Id. at 995 (emphasis omitted). Without limiting the scope
of those terms, the court stated that “we are convinced that
partial nudity of a female dancer in a public bar is at the very
least improper and, in our opinion, also falls within the broad
dictionary language defining immoral and lewd.” Id. (footnote
omitted).

        Other decisions in the lower Pennsylvania courts have
similarly considered whether some form of erotic dancing falls
within the terms of the Challenged Provisions without explicitly
construing or narrowing those terms. See, e.g., Rising Sun
Entm’t, Inc. v. Pa. Bureau of Liquor Control Enforcement, 829
A.2d 1214, 1217 (Pa. Commw. Ct. 2003) (stating that “topless
dancing performed in licensed establishments can be lewd,
immoral or improper entertainment per se”); BJJ Enter., Inc. v.
Commonwealth, 481 A.2d 1253, 1255 (Pa. Commw. Ct. 1984)
(upholding revocation of liquor license under “lewd, immoral or
improper” language where performances included “topless
dancing girls who wore panties or G-strings which permitted one
to see the pubic area”); Pa. Liquor Control Bd. v. Tris-Dad, Inc.,
448 A.2d 690, 691-92 (Pa. Commw. Ct. 1982) (finding statutory
standard satisfied where there was evidence that female dancers
wore wet nightgowns and displayed various parts of their bodies
during their performances). We have found no Pennsylvania

                                8
court or agency holdings that contain an explicit narrowing
construction of the Challenged Provisions. Cf. 181 South v.
Fischer, No. 05-1882, 2006 WL 1984497, at *6 (3d Cir. Jul. 18,
2006) (recognizing a narrowing construction of statute where
state court explicitly construed a prohibition on “lewd and
immoral activities” as a prohibition on entertainment where “‘the
predominant object and natural effect upon the observers-patrons
of one portion of the performance [is] erotic excitation.’”)
(citation omitted).3

        Although the Commissioner can point to no explicit
narrowing construction of the Challenged Provisions, he argues
that an implicit narrowing construction has emerged based on
the fact that Pennsylvania courts and agencies have applied the
challenged statutory language only to live dancing involving
exposure of genitals or involving physical sexual contact
between patrons and dancers. We disagree. The fact that the
Challenged Provisions have been applied exclusively to such
entertainment indicates only that such entertainment falls within
the scope of the Challenged Provisions; it does not define the
limits of the Challenged Provisions’ reach. Past practice does not
constitute a narrowing construction because it does not bind the
enforcement agency, which could, at some point in the future,
decide to target a broader range of establishments. This
possibility of expanded enforcement creates a chilling effect.
See Hicks, 539 U.S. at 119 (expressing concern over the
possibility that “the threat of enforcement of an overbroad law
may deter or ‘chill’ constitutionally protected speech”).

       The Commissioner asserts that the Liquor Board does not
intend to enforce the Challenged Provisions against “legitimate”


       3
        Although in Pennsylvania Liquor Control Board v. CIC
Investors No. 870, Ltd., 584 A.2d 1094 (Pa. Commw. Ct. 1990),
the Pennsylvania Commonwealth Court held that the erotic dancing
in the case satisfied the Statute because it “was a predominant
appeal to prurient interests,” this language has not been generally
adopted by the Pennsylvania courts as a narrowing construction of
terms of the Challenged Provisions. 584 A.2d at 1096 (quoting
Tahiti Bar, 150 A.2d at 367).

                                9
theatrical or concert performances. However, the mere fact that
an agency does not currently intend to apply a statute in an
unconstitutional manner cannot have the effect of an explicit
limiting construction. See Odle v. Decatur County, Tenn., 421
F.3d 386, 397 (6th Cir. 2005) (“neither proof that an ordinance
as currently applied has no unconstitutional effect, nor
assurances offered by the relevant local authorities that the
ordinance will not be put to such an effect in the future,
constitute ‘constructions’ of the ordinance, as that term is
ordinarily understood”); see also Ways v. City of Lincoln, Neb.,
274 F.3d 514, 519-20 (8th Cir. 2001) (rejecting city’s
assurances that a statute was “not intended to apply to artistic
venues” in considering an overbreadth challenge). But see SOB,
Inc. v. County of Benton, 317 F.3d 856, 865 (8th Cir. 2003)
(rejecting an overbreadth challenge where a county affidavit
noted the absence of theaters in the county and averred a lack of
intention to enforce the regulation against theatrical productions
with “serious artistic merit”). In short, the current enforcement
intentions of the Liquor Board are of no relevance to our
analysis of the scope of the Challenged Provisions.

       Thus, we conclude that no limiting construction of the
Challenged Provisions has been established by Pennsylvania
state courts or agencies. Nor are the plain terms of the
Challenged Provisions “readily susceptible” to such a
construction; the general prohibition on “lewd” entertainment in
any licensed establishment does not lend itself to an obvious
narrowing interpretation. See Giovani Carandola, Ltd. v. Bason,
303 F.3d 507, 517 (4th Cir. 2002) (“[W]e cannot adopt a limiting
construction unless a measure is ‘readily susceptible’ to such an
interpretation by state courts, and certainly cannot rewrite state
law.”) (internal citation omitted); cf. Schultz v. City of
Cumberland, 228 F.3d 831, 850 (7th Cir. 2000) (finding statute
susceptible to limiting construction where statutory prohibition
on commercial establishments “regularly featur[ing]” nudity
could be construed more narrowly as applying only to
establishments “always featur[ing]” nudity) (emphasis added).

       2. Scope of the Challenged Provisions

       As no narrowing construction is available, we must

                                10
consider the scope of the Challenged Provisions based on their
plain terms. At the outset, we note that Challenged Provisions
proscribe “lewd entertainment” in a notably broad array of
contexts. The parties agree that approximately 15,000 to 18,000
establishments have liquor licenses in Pennsylvania and are
subject to the Challenged Provisions.4 Many of these are
ordinary restaurants, but dinner theaters, comedy clubs, and
other venues that present some form of entertainment and serve
alcohol are also subject to the Challenged Provisions. Moreover,
the reach of the Statute extends to all places “operated in
connection” with licensed premises. This language presumably
applies to performance spaces that serve alcohol in the lobby
during intermission. Thus, the Challenged Provisions do not
solely apply to nude dancing, which “falls only within the outer
ambit of the First Amendment’s protection,” City of Erie v.
Pap’s A.M. 529 U.S. 277, 289 (2000) (plurality opinion), but
also apply to a variety of performances that are entitled to the
full protection of the First Amendment, as long as the venues
serve alcohol. See Conchatta, 83 Fed. App’x at 444 (noting that
the Statute covers “plays, musicals, concerts, political satires,


       4
          “Performing arts facilities” and “public venues” are
statutorily-defined establishments that show mainstream
performances and have a large seating capacity. See 47 Pa. Stat.
Ann. § 1-102 (2005). These establishments are subject to the
challenged language in the Statute if they serve alcohol, see 47 Pa.
Stat. Ann. § 4-412(f)(4) (2005); 47 Pa. Stat. Ann. § 4-413(g)
(2005), but the Commissioner states and Conchatta does not
dispute that these establishments are not subject to the Regulation.
See 47 Pa. Stat. Ann. § 4-493(10) (2005); 40 Pa. Code § 5.32(b)
(2006). Thus, Conchatta may assert the rights of these
establishments only with respect to the Statute. Of the
approximately 18,000 liquor licensees in Pennsylvania, thirty-one
qualify as “performing arts facilities” and forty-eight are “public
venues.” These separate categories are not critical to our analysis
here because, although our finding of overbreadth is related to the
impact on these establishments, it is also based on the impact on
numerous other liquor licensees that do not qualify in these
categories, such as small theaters and other small performance
spaces, as well as restaurants or bars that show movies.

                                11
comedies, ballets, dramas, singing performances, dancing
performances, poetry readings, and art shows throughout
Pennsylvania”) (Roth, J., dissenting); see also Nat’l Endowment
for the Arts v. Finley, 524 U.S. 569, 603 (1998) (“art is entitled
to full protection because our ‘cultural life,’ just like our native
politics, ‘rests upon [the] ideal’ of governmental viewpoint
neutrality”) (citation omitted).5

       As for what expression falls within the prohibition on
“lewd entertainment,” we, like the plaintiffs, find this to be a
difficult question to answer. The Pennsylvania courts have
construed “lewd entertainment” to include entertainment
involving fully exposed breasts, genital exposure, or genital
touching. As noted above, however, the statutory definition has
not been limited to include only entertainment with those
characteristics, and this exacerbates the chilling effect on a wide
range of First Amendment protected expression when the
Challenged Provisions are applied to artistic, theatrical, and
other non-adult entertainment venues. We need not here predict,
however, how expansively the Pennsylvania courts might
construe the prohibition because we conclude, in light of the
broad array of forms of entertainment to which the prohibition is
applicable, that even assuming the Challenged Provisions
proscribe no more than entertainment involving nudity or genital
touching, those Provisions are unconstitutionally overbroad.

       3. Secondary Effects and the Standard of Review

       We accept the Commissioner’s assertion that the
Challenged Provisions were enacted to limit negative secondary
effects resulting from the combination of “lewd” entertainment




       5
         Conchatta notes that in an April 5, 2001 opinion (See
Plaintiffs’ Brief at Addendum 1), the Pennsylvania Liquor Control
Board interpreted the Statute to apply to video images. Under this
interpretation, the Statute would apply to a movie shown at a bar
or other location selling alcohol.

                                 12
and consumption of alcohol.6 See Purple Orchid, 813 A.2d at
810 (concluding that one of the Statute’s purposes is “to address
the negative secondary effects that follow when nude dancing is
performed in establishments that are licensed to serve alcohol”).
Such an intention is unrelated to the content of the affected
expression. See City of Erie, 529 U.S. at 296 (holding that a
regulation aimed at the secondary effects of adult entertainment
establishments was “unrelated to the suppression of the erotic
message” and therefore content-neutral) (plurality opinion);
Carandola, 303 F.3d at 515 (finding a statute to be content-
neutral because it targeted the secondary effects of lewd conduct
on liquor-licensed premises).

       Where, as here, a regulation burdens expression but is
content-neutral, we apply the intermediate scrutiny standard
enunciated by the Supreme Court in United States v. O’Brien,
391 U.S. 367 (1968). See Texas v. Johnson, 491 U.S. 397, 407
(1989) (stating that O’Brien test applies where “the
governmental interest in question [is] unconnected to
expression”); 181 South, 2006 WL 1984497, at *4-5 (applying
O’Brien test to liquor-license regulation of adult entertainment
establishments).7 Under the O’Brien test, a regulation is
constitutional only if (1) “it is within the constitutional power of


       6
        Legislation intended to curb the negative secondary effects
of entertainment establishments is often aimed at “crime rates,
property values, and the quality of the city’s neighborhoods.” City
of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002).
       7
         We note that the fact that the Challenged Provisions
implicate Pennsylvania’s authority to regulate liquor consumption
does not affect the level of scrutiny applied. Although the Supreme
Court held in California v. LaRue, 409 U.S. 109, 118-19
(1972) that a state has special authority under the Twenty-first
Amendment to limit certain First Amendment rights in locations
serving alcohol, that holding was overturned in 44 Liquormart, 517
U.S. at 516. See 181 South, 2006 WL 1984497, at *4 (noting that
after 44 Liquormart, states no longer have enhanced authority
under the Twenty-first Amendment to regulate expression in places
that serve alcohol).

                                 13
the Government”; (2) it “furthers an important or substantial
governmental interest”; (3) “the governmental interest is
unrelated to the suppression of free expression”; and (4) “the
incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.”
O’Brien, 391 U.S. at 377; see also 181 South, 2006 WL
1984497, at *4. The fourth element of this test is particularly
relevant to our overbreadth inquiry here.8

        We conclude that the Challenged Provisions are
substantially overbroad under the fourth O’Brien requirement
because the asserted government interest is not applicable to a
large number of affected establishments. With respect to nude or
topless dancing at clubs or bars, an interest in limiting harmful
secondary effects may justify the Challenged Provisions.
See Carandola, 303 F.3d at 516 (noting that nude or topless
dancing has “‘a long history of spawning deleterious effects’”
and “in most cases a city or state need carry only a minimal
burden to demonstrate its interest in regulation of such activity”)
(citation omitted). With respect to ordinary theater and ballet
performances, concerts, and other similar forms of
entertainment, however, the Commissioner provides no evidence
that the Challenged Provisions prevent harmful secondary
effects, and we are exceedingly doubtful that they do. Without
evidence of such a connection, there is no state interest to justify
a substantial fraction of the Challenged Provisions’ scope. The
statutory language clearly could have been drafted more
narrowly to specifically target secondary effects associated with
nude or topless dancing. See Erznoznik, 422 U.S. at 217-18
(“Where First Amendment freedoms are at stake . . . precision of


       8
         There is no question, as to the first three prongs of the
O’Brien test, that Pennsylvania has the constitutional authority to
enact legislation such as the Challenged Provisions, that
Pennsylvania’s interest in limiting certain secondary effects related
to liquor-licensed venues is substantial, and that this interest is
unrelated to the suppression of free expression. See 181 South,
2006 WL 1984497, at *5 (finding O’Brien test satisfied with
respect to state regulation targeting secondary effects of erotic
entertainment in liquor-licensed venues).

                                 14
drafting and clarity of purpose are essential.”); Carandola, 303
F.3d at 517 (observing, with approval, that “jurisdictions with . .
. concerns [about adult entertainment] have adopted narrower
regulations, targeting only those venues where secondary effects
are likely to arise, while leaving other speech unaffected.”).
Thus, the restriction on First Amendment freedoms is
significantly greater than is essential to the furtherance of the
government interest, and the Challenged Provisions fail the
fourth requirement of the O’Brien test.

       Several of our sister circuits have similarly found that a
secondary effects rationale cannot justify regulation of such a
broad array of ordinary entertainment venues. See, e.g., Schultz,
228 F.3d at 849 (“When the government restricts speech not
associated with harmful secondary effects, then the government
cannot be fairly said to be regulating with those secondary
effects in mind and the regulation extends beyond its legitimate
reach.”); Carandola, 303 F.3d at 516-17 (finding likelihood of
success on overbreadth claim where liquor-license regulation
swept “far beyond bars and nude dancing establishments” to
burden “a multitude of mainstream musical, theatrical, and dance
productions – from musical comedy to ballet to political satire to
flamenco dance”); Odle, 421 F.3d at 399 (finding an ordinance
unconstitutionally overbroad because it “‘makes no attempt to
regulate only those expressive activities associated with harmful
secondary effects and includes no limiting provisions. Instead,
[it] sweeps within its ambit expressive conduct not generally
associated with’ the kinds of harmful secondary effects it was
designed to prevent.”) (quoting Triplett Grille, Inc. v. City of
Akron, 40 F.3d 129, 136 (6th Cir. 1994)); Ways, 274 F.3d at
519-20 (rejecting secondary effects rationale and finding
ordinance to be unconstitutionally overbroad because it could be
applied to “theater performances, ballet performances, and many
other forms of live entertainment”).

       Based on the reasoning above, we conclude that the
Challenged Provisions “punish[] a ‘substantial’ amount of
protected free speech, ‘judged in relation to [their] plainly
legitimate sweep,” and that they are therefore unconstitutionally



                                15
overbroad.9

                        B. Other Claims

       In addition to its facial overbreadth claim, Conchatta
asserts that the Challenged Provisions are unconstitutional as
applied, and that the Challenged Provisions are
unconstitutionally vague on their face. Because we strike down
the Challenged Provisions as substantially overbroad, we need
not consider either of these claims.

                      III. CONCLUSION

       For the foregoing reasons, we reverse the judgment of the
District Court with respect to the denial in part of Conchatta’s
motion for summary judgment, and we remand the case for
further proceedings consistent with this opinion.




       9
          The Commissioner argues that even if the Challenged
Provisions are overbroad, this overbreadth can be eliminated by
severance of the subsections of the Liquor Code applying the
Statute to statutorily-defined “performing arts facilities” and
“public venues.” See supra note 5. As noted above, a high seating
capacity, among other requirements, is necessary to qualify in these
categories, and only 79 of the more than 15,000 liquor-licensed
establishments in Pennsylvania qualify. Those that do not qualify
include low seating capacity performance spaces that serve alcohol.
Severance of the relevant provisions would therefore do little to
limit the substantial overbreadth of the Challenged Provisions.

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