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IMAGINARY IMAGES, INC. v. EVANS

No. 09-1199.

612 F.3d 736 (2010)

IMAGINARY IMAGES, INCORPORATED, d/b/a Paper Moon; BTF3, L.L.C., d/b/a Paper Moon; Papermoon-Springfield, Incorporated, d/b/a Paper Moon, Plaintiffs-Appellants, v. Pamela O'Berry EVANS, in her official capacity as Chair of the Virginia Alcohol Beverage Control Board; Susan R. Swecker, in her official capacity as Member of the Virginia Alcohol Control Board; Esther H. Vassar, in her official capacity as Member of the Virginia Alcohol Control Board, Defendants-Appellees.

United States Court of Appeals, Fourth Circuit.

Decided: July 15, 2010.

Attorney(s) appearing for the Case

ARGUED: J. Michael Murray, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellants. Mikie F. Melis, Office of the Attorney General, Richmond, Virginia, for Appellees.

ON BRIEF: Steven D. Shafron, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellants. William C. Mims, Attorney General of Virginia, Stephen R. McCullough, Solicitor General of Virginia, Catherine Crooks Hill, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellees.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge TRAXLER and Judge WILSON joined.

OPINION

WILKINSON, Circuit Judge:

Plaintiffs are three nightclubs where women give erotic dance performances wearing only g-strings and pasties. The clubs brought First Amendment, vagueness, and overbreadth challenges to Virginia's alcohol licensing program, which allows the clubs to serve beer and wine but not mixed beverages. Under the standard of intermediate scrutiny applicable to policies aimed at the harmful secondary effects of sexually oriented entertainment...

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