In a chilling adult entertainment decision, the 4th U.S. Circuit Court of Appeals has ruled that North Carolina can prohibit erotic movements or gestures at alcohol-licensed establishments even if the performer is fully clothed.

A Greensboro topless club has been battling the state over the constitutionality of a law on sexually explicit conduct for the past six years. The 4th Circuit struck the law down in 2002 but the legislature amended it last year, bringing another challenge from Christie's Cabaret which a trial judge upheld.

The amended statute prohibits a licensee from allowing “conduct or entertainment” that includes simulated sex acts or the “fondling” of erogenous zones. Only certain establishments “primarily devoted to the arts or theatrical performances” are exempt from the ban.

Chief District Judge N. Carlton Tilley found the law so vague and overbroad that it could be enforced against Carolina Panthers cheerleaders whose dance movements “could be interpreted as 'simulat[ing] sexual intercourse'” or the raunchy stage shows of Britney Spears and Madonna.

The state, he also noted, had “presented no evidence to support or justify such a substantial burden on the expression of speech contained in erotic dancing.”

A Christie's lawyer hailed that October 2005 decision as “a resounding victory for freedom of expression.” But this week, the 4th Circuit reversed, saying the amendments had cured any constitutional defects and interpreting the prohibition on “simulated” sex acts to apply only to a performance that “creates a realistic impression of an actual sex act.”

“No one would mistake a dancer gyrating her hips for someone having intercourse, nor believe that a Carolina Panthers cheerleader patting her buttocks as part of a dance routine was masturbating,” the opinion, authored by Judge Diana Gribbon Motz, said.

Motz accepted the state's assurances that the law would be enforced “in accordance with this limited interpretation” and

even a performance by Madonna ... would not fall within the new statute’s ambit unless it gave the audience the realistic impression that Madonna was actually performing a sexual act.

But how reassuring can it be to have bureaucrats decide what realistically simulates an actual sex act. Will they be scrutinizing the “freak” dancing of couples at North Carolina nightclubs and issuing citations to club owners if the pelvic thrusts become too realistic?

As for Madonna, she would probably only perform at an exempt establishment such as a concert hall. But the 4th Circuit has still –- absurd as it may seem -- exposed her to prosecution if she was to meet its definition of simulated sex while performing somewhere that is not “primarily devoted to the arts.”

By Matthew Heller
12/19/06