Appeals Court: Exotic Dancers in Louisiana Must Be 21+

NEW ORLEANS – Withdrawing and overturning a prior decision by the same court, a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit last week upheld Louisiana’s Act 395, a 2016 amendment to two state laws which regulate strip clubs.

The Act, which took effect in August of 2016, was immediately challenged by three dancers, all of whom are identified as “Jane Doe” plaintiffs in the lawsuit. The district court granted the plaintiffs a preliminary injunction staying enforcement of the amended laws, finding they had a substantial likelihood of prevailing in their claims that the Act is vague and overbroad.

While the Fifth Circuit initially upheld the lower court’s ruling, in rehearing the government’s appeal, circuit judges Leslie Southwick, Edith Brown Clement and Carl E. Stewart found that the Act was neither impermissibly vague or overbroad.

“The vagueness argument made by these plaintiffs is that they want to know precisely how much more of their bodies must be covered than dancers who are at least 21 years old are obliged to cover,” Southwick wrote for the appellate panel. “They want to wear the bare minimum, but the Constitution does not guarantee them that level of specificity. It is enough that the Act requires the full coverage of the breasts and buttocks. These are commonly understood anatomical terms. The State’s failure to define exactly where at the anatomical margins the bare minimum lies does not render the Act unconstitutionally vague on its face. Such an explanation, which would amount to ‘perfect clarity and precise guidance,’ is not required.”

The court also held that the Act doesn’t amount to a “total ban” on erotic dancing by individuals who are between 18 and 20 years old, because it “only applies to entertainers at alcohol-licensed establishments.”

In issuing the preliminary injunction preventing enforcement of the Act, the district court noted there was no statutory language in the Act excluding what the court called “mainstream” expressions of nudity. The district court rejected an affidavit supplied by Juana Marine-Lombard, the Commissioner of the Louisiana Office of Alcohol and Tobacco Control (and a named defendant in the lawsuit) in which Marine-Lombard stated the Act “does not apply to venues such as theatres, ballets, or other mainstream performance arts venues,” noting that she “will not always be the ATC commissioner and… it is not the Court’s role to rely on the interpretation of an enforcement agency when determining whether a statute is constitutional.”

The appellate panel disagreed with the district court on this point, quoting from prior cases in which courts have held that “Administrative interpretation and implementation of a regulation are… highly relevant to our analysis, for in evaluating a facial challenge to a state law, a federal court must… consider any limiting construction that a state court or enforcement agency has proffered.”

“When the state official charged with implementing a statute has provided an interpretation of how to enforce it, we will defer unless that explanation is inconsistent with the statutory language,” Southwick wrote. “Such officials often, perhaps always, have temporary tenure in office, but that has not been a reason courts have employed to ignore interpretive limits they state.”

While the appellate court’s ruling undoes much of the district court’s prior findings in the case, its decision does not represent the end of the legal wrangling between the Jane Doe plaintiffs and the state.

“This Act survives a facial challenge for vagueness,” Southwick wrote in concluding the decision. “As the State acknowledges on rehearing, what remains are possible ‘as-applied challenges brought in post-enforcement proceedings,’ where the exact manner in which a regulation is implemented may be addressed.”

The case now goes back before U.S. District Judge Carl Barbier for trial on the merits of its remaining claims.