Appeals Court Enforces Ban on Erotic Movement in Clubs

Gretchen Gallen
GREENBORO, N.C. – In a far-reaching decision that could potentially make cheerleaders or pop singers a target for prosecution, a 4th U.S. Circuit Court of Appeals upheld a ban on erotic simulation in adult entertainment venues throughout the state of North Carolina.

The case of club owner Giovanni Carandola vs. Douglas A. Fox, chairman of the North Carolina Alcoholic Beverage Control Commission, met its fate this week before the Circuit Court, which ruled that the state can prohibit erotic movements or gestures at alcohol-licensed establishments even if the performer is fully clothed. Only venues that are “primarily” devoted to the arts or theatrical performances are exempt from the ban.

The court’s decision comes as the last stop in a battle that began in 2000 when a commission officer for the ABCC witnessed dancers at Carandola’s Christie’s Cabaret “performing in a manner that violated then-applicable state law.”

Two years after Carandola was first cited, the 4th Circuit struck down that law for being overly broad, only to have the Legislature amend it last year with even more specific guidelines prohibiting adult venues from allowing simulated sex acts of any kind that mimick masturbation, sodomy, sexual intercourse, bestiality, oral copulation or flagellation. The terms of the amendment also included touching, caressing or fondling of the breasts, buttocks, anus, vulva or genitals and the use of artificial devices or inanimate objects.

In final arguments before the 4th Circuit, attorneys for Carandola argued that that law, even in its amended state, had a chilling effect on adult entertainment and posed a major threat to protections of the 1st and 14th Amendments.

Carandola even brought in anthropologist Dr. Judith Hanna to testify that movements in dance “such as those with the hips, thighs, breasts, hair and hands have traditionally been associated with simulating sex,” therefore making the law so broad as to prohibit constitutionally protected expression of the most basic kind.

The law exempts theaters, concert halls, art centers or theatrical performances when those performances are expressing “matters of serious literary, artistic, scientific or political value.”

“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,” Judge Diana Gribbon Motz wrote in her dissent.