Imaginary Images, Inc. v. Evans

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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  No. 09-1199

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.



Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, Chief District Judge.

(3:08-cv-00398-JRS)

Argued: May 13, 2010

Decided: July 15, 2010

Before TRAXLER, Chief Judge, WILKINSON, Circuit

Judge, and Samuel G. WILSON, United States District

Judge for the Western District of Virginia,

sitting by designation.

2 IMAGINARY IMAGES v. EVANS

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Chief Judge Traxler and Judge Wilson

joined.

COUNSEL

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 Gen-

eral of Virginia, Catherine Crooks Hill, Assistant Attorney

General, OFFICE OF THE ATTORNEY GENERAL, Rich-

mond, Virginia, for Appellees.

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 bever-

ages. Under the standard of intermediate scrutiny applicable

to policies aimed at the harmful secondary effects of sexually

oriented entertainment, Virginia’s policy passes constitutional

muster. The public interest served by the policy is substantial,

the restriction on the clubs mild and the burden on First

Amendment values slight. Moreover, legislatures must have

some leeway to draw a regulatory middle ground and Virgin-

ia’s is a policy of moderation. Judicial invalidation of care-

fully drawn distinctions risks chasing lawmakers from the

IMAGINARY IMAGES v. EVANS 3

paths of compromise and into absolutes. We thus decline to

overturn the classifications here, and accordingly affirm the

judgment of the district court.

I.

The sale and consumption of alcohol within the Common-

wealth of Virginia is governed by the comprehensive regula-

tory scheme established by the Alcoholic Beverage Control

("ABC") Act, Va. Code §§ 4.1-100, et seq., and by regula-

tions adopted by the ABC Board, the regulatory body created

by the Act. See Va. Code §§ 4.1-101, -103. Under this regime,

establishments where performers offer striptease routines may

obtain licenses to sell beer, wine, or both. Such facilities are

not eligible, however, for mixed beverage licenses, which per-

mit the sale of distilled spirits. See Va. Code §§ 4.1-226(2)(i),

-325(12), (13); 3 Va. Admin. Code § 5-50-140.

The current shape of these provisions stems in part from

earlier litigation. In Giovani Carandola, Ltd. v. Bason, 303

F.3d 507 (4th Cir. 2002) ("Carandola I"), this court struck

down as overbroad certain North Carolina limitations on the

availability of alcohol at establishments hosting sexually ori-

ented performances. The offending provisions were then

amended and the court upheld the revised scheme against

overbreadth and vagueness challenges. See Giovani Caran-

dola, Ltd. v. Fox, 470 F.3d 1074 (4th Cir. 2006) ("Carandola

II"). At the time, the Virginia ABC statutes and relevant ABC

regulation used language similar to that which Carandola I

had invalidated, leading to an injunction in 2007 against

enforcement of certain portions of the Virginia program. See

Norfolk 302, LLC v. Vassar, 524 F.Supp.2d 728, 742 (E.D.

Va. 2007). The Virginia General Assembly promptly

amended the challenged statutes to bring them into compli-

ance and the ABC Board similarly amended its regulation,

after which this court issued an order dismissing the ABC

Board’s pending appeal and vacating the injunction as moot.

4 IMAGINARY IMAGES v. EVANS

During the period when Virginia’s rules were suspended,

mixed beverage licenses were issued to the plaintiffs in this

case. Plaintiffs are three Virginia nightclubs belonging to the

Papermoon chain—two in Richmond and one in Springfield

—where dancers perform wearing only g-strings and pasties.

In June 2008, with the revised licensing program about to take

effect and their mixed beverage licenses in jeopardy, plain-

tiffs, whom we shall refer to as Papermoon, sued the ABC

Board’s members to block enforcement. Papermoon argued

that the scheme violated the First Amendment, was unconsti-

tutionally vague, and was facially overbroad.

An evidentiary hearing was held a few months later at

which the ABC Board offered the testimony of W. Curtis

Coleburn, its chief operating officer. Coleburn testified that he

and the Board had reviewed at least forty-two studies and

numerous cases dealing with the negative effects on the sur-

rounding community of sexually oriented businesses. He

explained that Virginia’s decision to limit establishments

offering sexually oriented entertainment to beer and wine

reflected the fact that distilled spirits more readily lead to

intoxication because of their higher alcohol content. He also

stated that Virginia’s policy had been modified to incorporate

the teachings of the Carandola decisions.

In response, Papermoon offered various evidence meant to

show that its clubs did not produce secondary effects. This

consisted chiefly of testimony from its expert, Professor Dan-

iel Linz of the University of California at Santa Barbara. Linz

explained that he had reviewed crime data for the Papermoon

locations and found that there was no increase in crime near

the clubs after they obtained mixed beverage licenses and that

sexually oriented businesses in Richmond generally were not

"hot spots" for crime.

In December 2008, the district court rejected the bulk of

Papermoon’s claims, holding, with exceptions not relevant

here, that Virginia’s policy prohibiting distilled spirits at

IMAGINARY IMAGES v. EVANS 5

establishments like the Papermoon clubs was constitutional.

See Imaginary Images, Inc. v. Evans, 593 F.Supp.2d 848, 863

(E.D. Va. 2008). Papermoon now appeals.

II.

Although it is a far cry from political speech, "nude danc-

ing is not without its First Amendment protections." Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 66 (1981). Regula-

tions of sexually oriented entertainment "receive intermediate

scrutiny if they are not premised on a desire to suppress the

content of such entertainment, but rather to address the harm-

ful secondary effects" it produces—higher crime rates, lower

property values, and unwanted interactions between patrons

and entertainers such as public sexual conduct, sexual assault,

and prostitution. Carandola I, 303 F.3d at 513. Under this

standard, the government must show that its regulation mate-

rially advances its substantial interest in reducing negative

secondary effects and that reasonable alternative avenues of

communication remain available. City of Los Angeles v. Ala-

meda Books, Inc., 535 U.S. 425, 434 (2002) (plurality); Car-

andola I, 303 F.3d at 515; see also Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989) (government must show its

interest "would be achieved less effectively absent the regula-

tion.").

But while the government must "fairly support" its policy,

it need not settle the matter beyond debate or produce an

exhaustive evidentiary demonstration. Alameda Books, 535

U.S. at 438 (plurality); see also id. at 451 (Kennedy, J., con-

curring in the judgment) ("[V]ery little evidence is required.").1

1

Justice Kennedy’s separate opinion in Alameda Books accepted the

four-member plurality’s holding on the evidentiary standard that governs

the secondary effects inquiry. See Alameda Books, 535 U.S. at 449 (Ken-

nedy, J., concurring in the judgment) ("The plurality . . . gives the correct

answer" to the question "how much evidence is required?"); see also Car-

andola I, 303 F.3d at 516.

6 IMAGINARY IMAGES v. EVANS

Moreover, its policy expertise is entitled to "deference," and

it may demonstrate the efficacy of its method of reducing sec-

ondary effects "by appeal to common sense," rather than "em-

pirical data." Id. at 439-40 (plurality); see also id. at 451-52

(Kennedy, J., concurring in the judgment). It may also rely on

the experiences of other jurisdictions and on findings

expressed in other cases. See City of Renton v. Playtime The-

atres, Inc., 475 U.S. 41, 51-52 (1986). Once the government

makes this showing, the matter is at an end unless the plaintiff

"produces clear and convincing evidence" to rebut it. Caran-

dola I, 303 F.3d at 516.

Papermoon argues that Virginia’s policy is unconstitutional

because a ban on mixed beverages at its clubs is pointless

when beer and wine are still allowed. It asserts that the ABC

Board produced no studies to support such a restriction, while

Papermoon offered social science evidence undermining it. In

assessing Papermoon’s challenge, we first examine the nature

of the regulation and its burden on expressive interests. We

next consider whether the ABC Board sufficiently demon-

strated the necessary relationship between the mixed beverage

restriction and its interest in reducing negative secondary

effects. Finally, we turn to Papermoon’s rebuttal evidence.

A.

We begin by noting that Virginia’s policy regarding alcohol

at erotic dancing locales is about as tame as one could imag-

ine. Virginia "has not forbidden these performances across the

board. It has merely proscribed such performances in estab-

lishments that it licenses to sell liquor by the drink." Califor-

nia v. LaRue, 409 U.S. 109, 118 (1972); see also Carandola

I, 303 F.3d at 513 n.2 & 519.

Indeed, Virginia does not even prohibit all alcohol at sexu-

ally oriented businesses, only mixed beverages. Wine and

beer are as available at the Papermoon clubs as at any other

Virginia bar. And as Papermoon itself notes, beer remained

IMAGINARY IMAGES v. EVANS 7

the drink of choice for its patrons even during the period

when it sold mixed beverages. Given that the First Amend-

ment has been held to permit banning any alcohol where

dancers strip to g-strings and pasties, Virginia’s policy is

hardly censorious. See Daytona Grand, Inc. v. City of Day-

tona Beach, 490 F.3d 860, 886 (11th Cir. 2007); Ben’s Bar,

Inc. v. Village of Somerset, 316 F.3d 702, 728 (7th Cir. 2003).

A mixed beverage license may well be a moneymaker—

Papermoon offered uncontradicted evidence that it was—but

in order to fail intermediate scrutiny there must be some

greater showing than some loss of revenue. See Renton, 475

U.S. at 54. Indeed, the Court recognizes that a law may result

in a mild and incidental diminution of speech without running

afoul of the First Amendment. See Ward, 491 U.S. at 799-

800. And here, it must be said, there is no indication that

expression is being curtailed at all. Although one of the three

Papermoon clubs initially decided to keep its mixed beverage

license and have its dancers wear extra clothes, it evidently

thought better of that decision and returned to pasties and g-

strings. From aught that appears, Papermoon dancers continue

to express themselves after reinstatement of the regulation

without diminution of inhibition—the performance went on as

before.

B.

Not only does Virginia’s policy regulate with the lightest of

touches, but the degree to which it trenches upon First

Amendment values is minimal at best. The First Amend-

ment’s pride of place in our constitutional order is a reflection

of how essential the institution of free speech is to a demo-

cratic society. See Eu v. San Francisco County Democratic

Cent. Comm., 489 U.S. 214, 223 (1989); New York Times Co.

v. Sullivan, 376 U.S. 254, 270 (1964). But that principle also

provides a limitation: activities that have little to do with

advocacy, deliberation, or the exposition of ideas have corre-

spondingly little to do with the First Amendment. See City of

8 IMAGINARY IMAGES v. EVANS

Erie v. Pap’s A.M., 529 U.S. 277, 294 (2000). Here the kind

of acts affected by the laws Papermoon assails are removed

from the First Amendment’s core concerns.

The challenged provisions pertain only to businesses where

performers give strip shows or otherwise expose their but-

tocks or breasts. See Va. Code §§ 4.1-226(2)(i), -325(12),

(13); 3 Va. Admin. Code § 5-50-140(B). And the policy does

not even purport to reach all such displays. Sexual entertain-

ment "expressing matters of serious literary, artistic, scien-

tific, or political value" offered in "establishments that are

devoted primarily to the arts or theatrical performances" is

entirely exempt. Va. Code §§ 4.1-226(2), -325(C); 3 Va.

Admin. Code § 5-50-140(C). In other words, the policy pri-

marily, if not exclusively, applies to bars offering perfor-

mances partaking more of "sexuality than of communication."

LaRue, 409 U.S. at 118.

Sexual expression and depictions can and do play an

important role both in democratic and artistic discourse, and

it is thus crucial to our ruling that Virginia has taken care to

narrow its regulatory focus here to the particular context of

sexually oriented entertainment at bars. As to this, we are sim-

ply not at liberty to ignore the Supreme Court’s emphasis

upon the relatively greater protections afforded many other

forms and outlets for artistic speech. The Court has instructed

that nude dancing is "only marginally" of First Amendment

value, Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991),

and "only within the outer ambit of the First Amendment’s

protection." Pap’s A.M., 529 U.S. at 289. For quite simply, "it

is manifest that society’s interest in protecting this type of

expression is of a wholly different, and lesser, magnitude than

the interest in untrammeled political debate." Id. at 294 (quot-

ing Young v. American Mini Theatres, Inc., 427 U.S. 50, 70

(1976)). In the context of a restriction as mild as the one to

which Papermoon has been subjected, "[t]he impairment of

First Amendment values is slight to the point of being risible,

since the expressive activity involved in the kind of striptease

IMAGINARY IMAGES v. EVANS 9

entertainment provided in a bar has at best a modest social

value." Blue Canary Corp. v. City of Milwaukee, 251 F.3d

1121, 1124 (7th Cir. 2001). And even here, it bears remind-

ing, Virginia has not asked Papermoon to stop the show or

even to cease serving all alcoholic beverages in conjunction

with it.

C.

1.

With these considerations in mind, we assess the ABC

Board’s justifications for the challenged policy. Notwith-

standing the policy’s minimal effect on expressive interests,

Papermoon requests that we strike it down because the ABC

Board did not produce empirical studies showing that a ban

on only mixed beverages at sexually oriented businesses will

reduce secondary effects—"higher crime rates and lower

property values," and "public sexual conduct, sexual assault,

and prostitution." Carandola I, 303 F.3d at 513. In making

this claim, however, Papermoon asks us to subject the ABC

Board to a more stringent standard than is compatible with the

Supreme Court’s teachings or the appropriate relationship

between courts and policymakers.

For starters, Papermoon’s argument takes an ironic turn,

namely that the Virginia regulation should be struck because

it is too mild to be effective. But in Pap’s A.M., the Supreme

Court rejected the idea that the government’s rationale could

be impeached because its regulation was not as effective as a

more restrictive alternative—in that case because the govern-

ment combated the problems of totally nude dancing by

requiring only that dancers wear pasties and g-strings. See

Pap’s A.M., 529 U.S. at 300-01; see also id. at 310 (Scalia,

J., concurring) ("I am highly skeptical, to tell the truth, that

the addition of pasties and G-strings will at all reduce the ten-

dency of establishments such as Kandyland to attract crime

and prostitution . . . ."). It is one thing to challenge the gov-

10 IMAGINARY IMAGES v. EVANS

ernment’s rationale as pretextual or to argue its restriction

advantages certain speakers or ideas to the detriment of oth-

ers. See City of Ladue v. Gilleo, 512 U.S. 43, 50-52 (1994).2

But when the government’s policy is not "a covert attack on

speech," invalidating a regulation because it is too permissive

does First Amendment freedoms no favors. Alameda Books,

535 U.S. at 447 (Kennedy, J., concurring in the judgment).

Even setting this objection aside, however, the ABC

Board’s position that prohibiting mixed beverages at estab-

lishments like Papermoon will curtail adverse secondary

effects was hardly unsupported. The Board considered more

than forty studies documenting the negative secondary effects

associated with establishments like Papermoon, and at any

rate, it is well established that "bars and clubs that present

nude or topless dancing" have "a long history of spawning

deleterious effects." Carandola I, 303 F.3d at 516 (citation

omitted).

Nor can there be any controversy over the proposition that

intoxication aggravates such secondary effects. "Common

sense indicates that any form of nudity coupled with alcohol

in a public place begets undesirable behavior." N.Y. State

Liquor Auth. v. Bellanca, 452 U.S. 714, 718 (1981) (quoting

N.Y. State Legis. Annual 150 (1977)). "Liquor and sex are an

explosive combination." Blue Canary, 251 F.3d at 1124.

Common sense equally indicates that more intoxication will

likely translate into more of the unwanted effects intoxication

produces.

The remaining link in the chain of reasoning underlying

2

Papermoon’s reliance on Joelner v. Village of Washington Park, 508

F.3d 427 (7th Cir. 2007), is accordingly misplaced. The policy there at

issue, "prospectively banning alcohol in strip clubs opened in the future,"

"was adopted to stifle competition with current license holders," not to

combat secondary effects, and was subjected to strict scrutiny. Id. at 429,

431, 433.

IMAGINARY IMAGES v. EVANS 11

Virginia’s policy, and the one Papermoon devotes its energies

to attacking, is the assumption that allowing mixed beverages

to be served will likely produce more intoxication. Paper-

moon notes that the ABC Board’s own website instructs that

an ounce-and-a-half shot of eighty-proof liquor contains the

same amount of alcohol as a twelve-ounce beer or five-ounce

glass of wine. How then, asks Papermoon, could mixed bever-

ages lead to more drunkenness?

This argument, however, trips on itself. By Papermoon’s

own calculations, mixed beverages contain a higher concen-

tration of alcohol in a smaller volume. The fact that there is

as much alcohol in a shot of whiskey as there is in a serving

of beer more than six times that volume illustrates how much

more concentrated distilled spirits are. A state is thus entitled

to conclude, as the Commonwealth has: "Distilled spirits used

in mixed beverages have higher alcohol content per volume

than beer or wine. As a result, patrons drinking straight shots

of liquor or mixed beverages can become intoxicated with

less volume consumed, and, therefore, in less time and more

easily, than patrons drinking beer or wine." Appellee’s Br. at

17.

Virginia could certainly conclude that this higher level of

intoxication from mixed beverages translates into higher

levels of secondary effects in the surrounding area –- namely

sexual assaults, prostitution, and a generally higher disorderly

conduct rate. Virginia could certainly take notice of the fact

that people will visit these clubs throughout the hours of the

clubs’ operation and that patrons will stay for varying lengths

of time. For those at a club a relatively short period of time,

a state of intoxication can be reached more quickly with dis-

tilled spirits. For those there a longer time, the degree of

intoxication will be much greater with mixed beverages than

it would be for a person drinking beer or wine over the same

period. Of course, all of these assumptions will be subject to

individual variations dependent upon a variety of factors. But

legislatures can pass laws dealing with what will normally

12 IMAGINARY IMAGES v. EVANS

happen without making exceptions for individual particulari-

ties.

In sum, Virginia has a legitimate interest in reducing the

chances of a person leaving a strip club intoxicated by elimi-

nating the sale of distilled spirits and it could further legiti-

mately believe that this modest step could reduce the harmful

secondary effects surrounding such establishments.

2.

The particular risks of distilled spirits are reflected in the

fact that Virginia in a variety of ways saddles them with spe-

cial burdens. Distilled spirits are taxed more heavily than beer

and wine. See Va. Code §§ 4.1-234, -236. Unlike beer and

wine, they generally can only be purchased for home con-

sumption in ABC stores. See id. §§ 4.1-119(A), -210; see also

id. § 4.1-221(A). And they may only be served in establish-

ments with full restaurant facilities where at least forty-five

percent of gross receipts come from the sale of food or other

beverages. See id. § 4.1-210(A)(1). Papermoon argues that

because these additional safeguards are in place, there is no

need for further restricting the availability of mixed beverage

licenses at its clubs. But one sensible precaution does not

obviate the need for others. As Coleburn testified, "Our whole

system, as well as that of every state in the United States, is

designed to discourage people from drinking distilled spirits

in favor of the less intoxicating beer and wine."

Virginia has long favored less potent varieties of drink. The

original ABC Act established a policy of "discouraging the

consumption of hard liquor by making it harder to obtain

while encouraging the consumption of light fermented bever-

ages, such as beers and wines by making them easier to

obtain." Bolick v. Roberts, 199 F.Supp.2d 397, (E.D. Va.

2002) (internal quotation omitted) (vacated as moot by Bolick

v. Danielson, 330 F.3d 274 (4th Cir. 2003)). Indeed, support

for such an approach is literally of early vintage. Thomas Jef-

IMAGINARY IMAGES v. EVANS 13

ferson argued that "[n]o nation is drunken where wine is

cheap; and none sober, where the dearness of wine substitutes

ardent spirits as the common beverage." Letter from Thomas

Jefferson to Jean Guillaume, Baron Hyde de Neuville (Dec.

13, 1818), in A Jefferson Profile as Revealed in His Letters

301 (Saul K. Padover ed., 1956).

And in identifying distilled spirits as a matter of special

regulatory concern, Virginia is anything but unique. Like Vir-

ginia, most states adopted ABC statutes that "placed more

stringent requirements on interests dealing in distilled spirits

. . . since distilled spirits, of course, contain a significantly

higher alcoholic content than beer and wine." California Beer

Wholesalers Assn., Inc. v. Alcoholic Bev. Control Appeals

Bd., 487 P.2d 745, 749 (Cal. 1971). Taxes are higher on dis-

tilled liquor than on beverages with lower concentrations of

alcohol—indeed, one state’s highest court held it a violation

of the state constitution to tax beverages whose alcoholic con-

tent was no greater than that of wine at the much higher rates

applicable to distilled spirits, finding it "impossible to ignore

this natural progression in alcoholic content by volume." See

Federated Distributors, Inc. v. Johnson, 530 N.E.2d 501, 509

(Ill. 1988).

Similarly, licenses allowing the sale of mixed beverages are

often costlier than licenses allowing only drinks with lower

alcoholic contents, reflecting the fact "either that the legisla-

ture believed that a restaurant selling all liquors would ordi-

narily do a different kind of business or that it was

contemplated that it would cost more to police it." JPM Inv.

Group, Inc. v. Brevard County Bd. of County Comm’rs, 818

So.2d 595, 599 (Fla. Dist. Ct. App. 2002) (quoting Salerni v.

Scheuy, 102 A.2d 528, 530 (Conn. 1954)). Widespread legis-

lative recognition of the special need to regulate mixed bever-

ages stands as an empirical demonstration of its own.

The prevalence and durability of Virginia’s distinction in

no way render it wrong, at least not where a state is exercising

14 IMAGINARY IMAGES v. EVANS

its "inherent police powers" "to prohibit the sale of alcoholic

beverages in inappropriate locations." 44 Liquormart, Inc. v.

Rhode Island, 517 U.S. 484, 515 (1996). The provisions at

issue comprise part of Virginia’s "long-established alcohol

control law" and represent but one facet of the comprehensive

regulatory approach the Commonwealth has adopted. Caran-

dola I, 303 F.3d. at 514. Those provisions appear alongside a

variety of other measures minimizing secondary effects and

plainly related to preserving public order, and they "are most

naturally viewed as companion provisions, also intended to

prevent such societal ills." Id. at 515; see Va. Code § 4.1-

325(20).

Courts have no warrant to supplant a state’s policy prefer-

ences with our own. We have no trouble concluding that Vir-

ginia’s "inferences appear reasonable." Alameda Books, 535

U.S. at 452 (Kennedy, J., concurring in the judgment). That

businesses like Papermoon are capable of producing harmful

secondary effects, that intoxication exacerbates those effects,

that more intoxication means more exacerbation, and that

mixed beverages may lead to more intoxication are proposi-

tions whose sensible nature would lead to a Supreme Court

slap of any hand that invalidated them. Taken together, they

provide "fair[ ] support" for the Commonwealth’s policy, and

the ABC Board carried its burden. Id. at 438 (plurality).

D.

Virginia has thus demonstrated the necessary relationship

between its mixed beverage restriction and its substantial

interest in reducing negative secondary effects. We turn there-

fore to Papermoon’s rebuttal of the ABC Board’s showing.

Evidence rebutting the government’s justification for a sec-

ondary effects regulation, however, must do more than chal-

lenge the government’s rationale; it must convincingly

discredit the foundation upon which the government’s justifi-

cation rests. See Carandola I, 303 F.3d at 516. Papermoon

largely relied on the study produced by its expert, Professor

IMAGINARY IMAGES v. EVANS 15

Daniel Linz, and that evidence falls short of the "clear and

convincing" standard necessary to sustain its challenge. Id.

For a start, Linz’s before-and-after analysis focused only on

Papermoon. But officials "need not show that each individual

adult establishment actually generates the undesired second-

ary effects." Independence News, Inc. v. City of Charlotte,

568 F.3d 148, 156 (4th Cir. 2009). Since the Virginia policy

could be sustained if sexually oriented businesses "as a cate-

gory" produce secondary effects when mixed beverages are

served, Linz’s study hardly undermined the government’s

case. Richland Bookmart, Inc. v. Knox County, 555 F.3d 512,

532 (6th Cir. 2009). Moreover, the study was based on only

nine months of data, yet as Linz candidly acknowledged, a

study of crime rates should be based on at least three years of

information. And more generally, there was reason to be

skeptical about how well his conclusions about Papermoon

matched the governing legal standard since Linz has sought

to debunk altogether the idea that sexually oriented businesses

generate secondary effects as a "legal myth."

The Commonwealth also contests the data sets he used. The

Richmond data he obtained referred to "founded" incidents of

crime but he acknowledged that the term is "not defined fur-

ther by the police department" and that he had "found no

other definition." He also admitted that he did not know

whether the addresses included with the crime data always

referred to the place where a crime was committed, and in any

event he did not account for crime that may be linked to

Papermoon but that actually occurred outside the narrow zone

of geographic proximity he had designated. His Springfield

data, meanwhile, did not include many relevant crimes,

including disorderly conduct, drunkenness, driving under the

influence, homicide, interference with police, prostitution,

threatening bodily harm, various weapons offenses, and so on.

So while the Linz study and others may well be of interest to

legislatures or those formulating policy, it does not provide

16 IMAGINARY IMAGES v. EVANS

the kind of "clear and convincing" evidence needed to rebut

the government’s showing and invalidate the regulation.

E.

We need not dwell further on the particulars of the ABC

Board’s showing or the problems with Papermoon’s rebuttal,

however, for there is a simpler principle to be respected. The

notion that the decisions of democratically accountable bodies

must be set aside because of an absence of some unspecified

quantum of social science support or the presence of a con-

flicting study commissioned by a litigant is one we must

approach with skepticism. "As a general matter, courts should

not be in the business of second-guessing fact-bound empiri-

cal assessments" made by lawmakers. Alameda Books, 535

U.S. at 451 (Kennedy, J., concurring in the judgment). A local

policymaking body "knows the streets . . . better than we do.

It is entitled to rely on that knowledge; and if its inferences

appear reasonable, we should not say there is no basis for its

conclusion." Id. at 452 (citation omitted).

Papermoon insists, however, that there is no evidence in the

record showing that people drinking liquor at strip clubs cause

more problems than people drinking beer or wine. We agree

with Papermoon that no empirical study has been presented

that correlates criminal activity to the particular alcoholic bev-

erage consumed, but we disagree that empirical support is

needed for the perfectly sensible legislative proposition that

someone drinking liquor at a strip club will get more intoxi-

cated than someone drinking beer or wine over the same

amount of time and hence be more likely to cross permissible

lines. Of course there will be many occasions when legislators

will wish to consult empirical work. But much in life is not

easily reduced to data sets, and there are limits on how much

lawmakers’ judgment can be subjected to the argumentative

rounds and elusive requirements of statistical validation.

Policymakers "must be allowed a reasonable opportunity to

experiment with solutions to admittedly serious problems."

IMAGINARY IMAGES v. EVANS 17

Renton, 475 U.S. at 52 (quotation marks omitted). Legislative

bodies have the advantage both of commonsense practicality

and constituent accountability. And "appeal to common

sense," Alameda Books, 535 U.S. at 439 (plurality), and

"common experience," id. at 452 (Kennedy, J., concurring in

the judgment), are what the Supreme Court has approved. We

risk violence, then, to democratic principles and to prudent

and innovative governance when we make the validity of leg-

islation turn on wars of competing studies. There remains a

place in the legislative process for the exercise of simple rea-

son and sound judgment, just as there remains a place in the

judicial process for the exercise of some restraint.

These considerations are particularly salient where, as here,

lawmakers have sought a middle ground that balances com-

peting demands. Courts often are not equipped to craft such

compromises and must take special care not to hamstring

those who are. Where compromise embodies invidious dis-

tinctions, special scrutiny is demanded. But the distinction

between beer and wine on the one hand and distilled spirits

on the other is anything but invidious, and to strike down such

classifications risks pushing lawmakers away from compro-

mise and toward more polar postures.

It bears repeating that more severe policies, under which

alcohol is completely forbidden at establishments like Paper-

moon, have been repeatedly upheld in the face of constitu-

tional challenge. See Daytona Grand, 490 F.3d at 886 ("[A]ny

artistic or communicative elements present in such conduct

are not of a kind whose content or effectiveness is dependent

upon being conveyed where alcoholic beverages are served.")

(quoting Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943,

948 (11th Cir. 1982)); Ben’s Bar, 316 F.3d at 726 ("The First

Amendment does not entitle Ben’s Bar, its dancers, or its

patrons, to have alcohol available during a ‘presentation’ of

nude or semi-nude dancing."). Were we to invalidate a policy

restricting only distilled spirits, the Commonwealth’s

response might well be to ban alcohol at sexually oriented

18 IMAGINARY IMAGES v. EVANS

businesses outright. The First Amendment does not demand

that we distort the political process in such a fashion.

None of this is to say that Virginia’s policy is unassailable

or even right. But the primary means to challenge legislative

misconceptions is through the channels of representative gov-

ernment: hearings, speeches, conversations, debates, the

whole clamorous drama of democracy that leads to the enact-

ment of the given law. In the First Amendment context, those

affected by restrictions designed to combat secondary effects

may of course demonstrate that the justification for a particu-

lar restriction rests on "shoddy data or reasoning." Alameda

Books, 535 U.S. at 438 (plurality). But to invoke the power

of the judiciary to set the policy aside, such evidence must be

sufficiently convincing to "prove[ ] unsound" the govern-

ment’s justification for its policy. See id. at 453 (Kennedy, J.,

concurring in the judgment). Here the evidence is not.

III.

Papermoon also challenges portions of the Virginia ABC

statutes as unconstitutionally vague and unconstitutionally

overbroad. As with its substantive First Amendment claim,

we find these objections to be without merit.

A.

We begin with Papermoon’s vagueness challenge. In

assessing a vagueness challenge, a court must ask whether the

government’s policy is "set out in terms that the ordinary per-

son exercising ordinary common sense can sufficiently under-

stand and comply with." Carandola II, 470 F.3d at 1079

(citation omitted). While laws that regulate expression are

subjected to "stricter standards," Smith v. California, 361 U.S.

147, 151 (1959), "perfect clarity and precise guidance have

never been required even of regulations that restrict expres-

sive activity." Ward, 491 U.S. at 794.

IMAGINARY IMAGES v. EVANS 19

Two different sections of the ABC Act prohibit mixed bev-

erages at establishments like Papermoon. The first requires

that the ABC Board suspend the mixed beverage license of

any establishment hosting "what is commonly called stripteas-

ing, topless entertaining, and the like, or which has employees

who are not clad both above and below the waist, or who

uncommonly expose the body." See Va. Code § 4.1-226(2)(i);

see also id. § 4.1-223(3)(i). The second provides that a mixed

beverage licensee may not allow "any striptease act on the

licensed premises" or "persons connected with the licensed

business to appear nude or partially nude." See id. §§ 4.1-

325(12), (13). Papermoon argues that the terms "stripteasing"

and "striptease," and the phrases "clad both above and below

the waist" and "partially nude" are unconstitutionally vague

because it is unclear how much clothing has to be worn to sat-

isfy their requirements.

We find this argument unpersuasive. As the district court

noted, "striptease" is defined straightforwardly as "a burlesque

act in which a performer removes clothing piece by piece."

Merriam-Webster’s Collegiate Dictionary 1166 (10th ed.

1999); see also Barnes, 501 U.S. at 581 (Souter, J., concur-

ring in the judgment) (describing a striptease as "a dancer’s

acts in going from clothed to nude . . . integrated into the

dance and its expressive function."). The term is clearly one

of common usage and given the erotic fashion in which

clothes are removed, "a ‘striptease’ performance, we think,

speaks for itself." City of New Orleans v. Kiefer, 164 So.2d

336, 339 (La. 1964).

Nor do we think that in this context the term "partially

nude" is vague. Nudity, as a matter of everyday speech, refers

to the absence of clothing, exposing those parts of the body

commonly denominated "private." Partial nudity would thus

refer to the partial exposure of the private parts. Not surpris-

ingly, that is precisely what the ABC regulation governing

mixed beverage licenses provides, forbidding "less than a

fully-opaque covering of the genitals, pubic hair or buttocks,

20 IMAGINARY IMAGES v. EVANS

or any portion of the breast below the top of the areola." 3 Va.

Admin. Code § 5-50-140(B). This language tracks the defini-

tion of "nudity" elsewhere in Virginia law. See Va. Code

§ 18.2-390(2); see also, e.g., Iowa Code § 709.21(2)(a); Md.

Code Ann., Crim. Law § 11-203(a)(6); Mass. Gen. Laws ch.

272, § 105(a); Mo. Rev. Stat. § 565.250(1); 18 Pa. Cons. Stat.

§ 7507.1(e); Utah Code Ann. § 76-5a-2(6); W. Va. Code

§ 61-8-28(a)(1); Wis. Stat. § 942.08(1)(a). The meaning of the

phrase "clad both above and below the waist" is similarly

apparent: Papermoon’s dancers may not dance "topless" or

"bottomless." Again, the regulations make it clear that if

mixed beverages are to be served, g-strings, pasties, and other

such fig leaves will not do, as Papermoon itself well under-

stands.

Quite frankly, Papermoon’s vagueness challenge depends

on wishful thinking. It is clear what conduct the ABC mixed

beverage policy reaches—and that what it reaches is what

Papermoon’s dancers do. The risk that dancers at clubs like

Papermoon will be "chilled" into donning more clothing than

the law requires is slim indeed.

B.

Finally, we consider Papermoon’s overbreadth challenge.

The overbreadth doctrine allows a party to "challenge a stat-

ute on its face because it also threatens others not before the

court—those who desire to engage in legally protected

expression but who may refrain from doing so rather than risk

prosecution or undertake to have the law declared partially

invalid." Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482

U.S. 569, 574 (1987) (internal quotation marks omitted).

Accordingly, the overbreadth doctrine is "strong medicine" to

be applied "sparingly and only as a last resort." Broadrick v.

Oklahoma, 413 U.S. 601, 613 (1973). A court properly holds

a law facially invalid on overbreadth grounds only where its

overbreadth is "substantial . . . judged in relation to the stat-

ute’s plainly legitimate sweep." Id. at 615.

IMAGINARY IMAGES v. EVANS 21

As discussed, Virginia’s prohibition on mixed beverages at

venues like Papermoon is within the statutes’ legitimate

sweep. And cultural venues offering "matters of serious liter-

ary, artistic, scientific, or political value" are properly

exempted. Va. Code §§ 4.1-226(2), -325(C); 3 Va. Admin.

Code § 5-50-140(C). Papermoon stresses that the overwhelm-

ing majority of establishments licensed to sell mixed bever-

ages in Virginia are not "adult entertainment establishments"

and still would not come within the exception for cultural

venues. But that is beside the point since an ordinary bar is

unlikely to have its employees strip or otherwise have their

breasts or buttocks exposed (much less for expressive pur-

poses). And one that did allow such displays might plausibly

be linked to the secondary effects Virginia has targeted. Per-

fection is not required to survive an overbreadth challenge—

a statute that shields "most protected activity" is permissible.

Carandola II, 470 F.3d at 1085. Here, we see few, if any,

likely applications of the policy that would be forbidden by

the Constitution.

Indeed, the matter should be beyond debate since the

exception for cultural venues Virginia adopted uses word-for-

word the same language that cured North Carolina’s over-

breadth problem in Carandola II. See Carandola II, 470 F.3d

at 1083-84. Papermoon attempts to distinguish the case, argu-

ing that the policy Carandola addressed only prohibited out-

right nudity while Virginia’s additionally prohibits even the

near-nudity of g-strings and pasties where mixed beverages

are served. We do not see, however, how this additional

requirement is likely to inflict further collateral damage on

protected expression. The range of expressive activities

dependent upon exposing the buttocks or breasts pretty well

coincides with the range of those dependent on exposing the

genitals. And if, as Papermoon strenuously urges, Carandola

II’s conclusion that the statutes there at issue were not over-

broad depended on the mildness of the restriction they

imposed, then we must point out once again that a policy

22 IMAGINARY IMAGES v. EVANS

merely forbidding mixed beverages where erotic perfor-

mances take place is likewise anything but draconian.

IV.

Where governmental action is involved, a constitution

exists in part to prune extremes. Where intermediate scrutiny

is concerned, it is not wrong for moderation in the political

process to find a constitutional home. The Commonwealth

has demonstrated moderation in its efforts to balance the

expressive value in erotic dancing with the unwanted encour-

agement of secondary effects. That courts should not be

turned into appellate legislatures should go without saying,

but it is particularly true where the political process has not

sought to push the constitutional envelope and where lawmak-

ers have responded conscientiously to prior opinions of this

and other courts. For the foregoing reasons, the judgment is

AFFIRMED.