Court weighs law on dancing

Suit opposing ban is heard on appeal

RICHMOND, VA. -- North Carolina's ban on sexually explicit dancing at establishments that serve alcohol imposes minimal restrictions that don't violate anyone's free-expression rights, an attorney for the state told a federal appeals court Tuesday.

Christopher Browning, the state's solicitor general, urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to reverse a lower court's ruling that some provisions of the law are so broad they are unconstitutional.

The statute recognizes "the volatile combination of alcohol and erotica," Browning said. "Harmful secondary effects flow from this kind of conduct."

Christie's Cabaret, a Greensboro strip club, filed a lawsuit challenging the law in 2001. U.S. District Judge N. Carlton Tilley struck down the law, and the 4th Circuit upheld his decision.

The General Assembly revised the statute in 2003 but kept provisions banning dance moves that simulate sex acts or the fondling of one's genitals, breasts or buttocks.

The strip club sued again, and Tilley ruled in November that the law still prohibits protected expression.

The club's attorney, J. Michael Murray, told the appeals court Tilley was correct.

"If you ban simulated sex and fondling on the part of the exotic dancer, that bans the message," Murray said.

Ban or regulation?

Browning argued that the restriction is not excessively broad because it applies only to patrons or employees of establishments licensed by the state to sell alcohol. That point seemed to resonate with Judge Paul V. Niemeyer.

"This is not a general ban; it's a regulation on licensees," Niemeyer said. "There's no reason this message can't be communicated on a street corner."

Murray said that is like prohibiting discussions about politics or religion in certain establishments.

"The type of conduct here is constitutionally protected," he said.

In his ruling last year, Tilley said the law was so broad that owners of Bank of America Stadium could be found guilty if the Carolina Panthers cheerleaders performed sexually suggestive dance routines. Arena owners could be held responsible, too, for entertainers' moves during rock concerts, he said.

Browning said the law's exemption for venues dedicated primarily to theatrical performances could be interpreted to cover stadiums and concert arenas.

The appeals court usually rules several weeks after hearing oral arguments.