dissenting:
This case represents yet another effort by state and local authorities to regulate the purveyance of sexually explicit dancing in nightclubs and bars in their communities. In this case, the purveyors of such dancing in North Carolina challenge a North Carolina law prohibiting licensees who are authorized to sell alcoholic beverages from providing entertainment during which “private parts are exposed,” entertainment that “includes or simulates sexual intercourse or any other sexual act,” or entertainment that is otherwise “lewd or obscene.” N.C. Gen.Stat. § 18B-1005.
Acting under the direction of this statute, the North Carolina Alcoholic Beverage Control Commission adopted a regulation that provides as follows:
(a) No permittee or his employee shall allow any person to perform acts of or acts that simulate:
(1) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any sexual acts that are prohibited by law;
(2) the touching, caressing or fondling of the breasts, buttocks, anus, vulva or genitals;
(3) the display of the pubic hair, anus, vulva or genitals.
(b) No permittee or his employee shall allow any person to use artificial devices or inanimate objects to depict any of the prohibited activities described in Paragraph (a) of this Rule.
(c) No permittee or his employee shall allow any person who exposes to public view any portion of his pubic hair, vulva, genitals or anus to remain in or upon the licensed premises.
4 N.C. Admin Code, tit. 4, r.2S.0216 (2002).
When Christie’s Cabaret, a nude dancing establishment in Greensboro, North Carolina, was charged with violation of the *522statute and regulation, it, together with a dancer, commenced this action facially challenging the prohibitions as unconstitutional. Without challenging their violation of the statute, they argue that the statute and regulation deny them the right to free speech under the First and Fourteenth Amendments to the United States Constitution.
The district court preliminarily enjoined enforcement of the North Carolina law. For the reasons that follow, I would reverse.
In writing to affirm, the majority seeks to protect the offensive conduct which con-cededly violates both the statute and the regulation by concluding that the statute and regulation are unconstitutionally over-broad. It relies on an array of Supreme Court decisions that fail to dispose of the issue before us. With respect to the one dispositive case, California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the majority refuses to follow the decision through an effort to distinguish it.
In LaRue, the Supreme Court was faced with a statute virtually identical to the one before us and found it constitutional against a facial challenge that it violated the First and Fourteenth Amendments. The Supreme Court observed that “as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases.” 409 U.S. at 117, 93 S.Ct. 390. In concluding that the California law before it was constitutional, the Court explained that the State had more latitude in regulating nude dancing because the restrictions were imposed in connection with liquor licenses:
The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, “performances” that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.
Viewed in this light, we conceive the State’s authority in this area to be somewhat broader than did the District Court.
Id. at 118, 93 S.Ct. 390.
In seeking to distinguish the Supreme Court’s holding, the majority points out that the State in LaRue did not concede the argument, as did the State in this case, that the language of the statute could reach some main street establishments. Whether a legal argument is conceded or not, however, does not affect the Supreme Court’s holding, which reviewed the statute, not the legal arguments. Moreover, the Supreme Court addressed the concession made in this case, observing that the prohibition was constitutional even though “some of the performances to which these regulations address themselves are within the limits of constitutional protection.” Id. at 118, 93 S.Ct. 390.
The majority also seeks to distinguish LaRue on the ground that the Court in LaRue affirmed the statute “on the strength of a detailed record of public hearings documenting serious problems with prostitution, public sexual conduct, and sexually transmitted disease in establishments presenting nude dancing and sexually explicit movies.” Ante at 16 (citing LaRue, 409 U.S. at 110-12, 93 S.Ct. 390). But the fact that the record here was not as complete as the one in the California context cannot mean that the *523effects of sexually explicit conduct in North Carolina would be different on the community than sexually explicit conduct in California. The sexual appetite is a fact of the human condition everywhere. And the cases are replete in acceptance of the ill effects and moral degradation caused by such sexually explicit conduct in bars and nightclubs. See, e.g., City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 96, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 717-18, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (recognizing the potential for “disturbances associated with mixing alcohol and nude dancing”).
Finally, the majority suggests that La-Rue is no longer good law because it was “reinterpreted” in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). This argument, however, is simply based on a misreading of 44 Liquormart. In that case, the court “disavowed” only the reasoning in LaRue that depended on the Twenty-first Amendment to support its holding. The Court was careful to state that it did not “question[ ] the holding” of LaRue as it applied the First and Fourteenth Amendments. See 44 Liquormart, 517 U.S. at 516, 116 S.Ct. 1495. Indeed, the Court pointed out that it would have reached “precisely the same result [in LaRue] if it had placed no reliance on the Twenty-first Amendment.” Id. at 515,116 S.Ct. 1495.
The other circuit courts that have been faced with the exact issue presented in this case have held, as I would, that the holding in LaRue remains binding precedent with respect to similarly worded statutes. See, e.g., BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 608 (8th Cir.2001) (“Because the Supreme Court has refused to reject the holding of LaRue, the case remains precedent that we are obliged to apply to similar cases”); Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 996 & n. 5 (11th Cir.1998) (applying LaRue because 44 Liquormart held that LaRue would have had the same outcome even if the Twenty-first Amendment reasoning had not been applied).
For these reasons, I would reverse the entry of the preliminary injunction, and therefore, I respectfully dissent.