Atlantic City- The U.S. Court of Appeals for the Third Circuit has ruled on a legal question that could have far-reaching consequences for bachelor parties and lonely men.
Do strippers have a First Amendment right to do that thing they do?
Apparently not.
The decision came Tuesday in the case of an Atlantic City go-go bar, the Moulin Rouge, that was cited three years ago for violating New Jersey’s lewdness standards.
State troopers – conducting perhaps the most sought-after undercover operation in history – observed dancers there rubbing themselves and their patrons, including one of the officers, in sexually explicit ways.
The Moulin Rouge paid the state Division of Alcohol Beverage Control a $10,000 fine to keep its liquor license, then immediately challenged the state’s regulation against “any lewdness or immoral activity.”
“The courts in New Jersey have described lewdness as… ‘erotic excitation,’ whatever the hell that means,” said Daniel A. Silver, a First Amendment lawyer from Connecticut who argued on behalf of the Moulin Rouge.
He said the regulation was unconstitutional – and wrongly applied to the Moulin Rouge dancers.
The standard, he said, was developed in the case of nude entertainment. Dancers at the Moulin Rouge – like those at all New Jersey go-go bars that serve alcohol – may strip down only to a bikini. Silver noted, respectfully, that the Third Circuit had inaccurately described the Moulin Rouge as a “topless” bar.
“I don’t consider this a strip club if they’re wearing a bathing suit,” Silver said yesterday before boarding his boat, the Free Speech, in the Long Island Sound.
He said he would file a motion to argue the case again. A three-judge panel heard the original arguments, but one of the judges died before the ruling was written. The remaining two found that the state’s regulation did not stop people from “participating in lewd or immoral activity.”
“Rather, it only prohibits such activity from taking place on the premises of liquor-licensed establishments,” the ruling read.
The judges also quoted a U.S. Supreme Court decision that cautioned against considering the “bacchanalian revelries” of a strip club as “the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater.”
Silver acknowledged that the dancers at the Moulin Rouge might have crossed the line defined by the state.
“But that doesn’t mean that this lewdness standard should be applied… and anytime someone from the ABC thinks something is lewd, then I’m disciplined,” he said. “If a dancer in a bikini touches her breast and that’s considered lewd, then she can’t dance. She has to just stand there.”