or any other issues that the court would like them to address the other bed claim was fatally flawed for two reasons first the district court never found both real and substantial overbred as the supreme court has instructed the supreme court specifically said that s reality requires that the claimant show from the text of the law in from actual fact the impermissible applications that the district court is concerned about however here for twenty years the language that he enjoined has been around the statu of the second element of a such a castle had that at the statute been subject to such a claim before any court held it was or was not overbroad no it wasn't but it was simply because there was no prosecution under the statute all i'm not allowed to drink alcohol in in the clubs so they are not the teenagers can come in and watch the show no i don't believe well eighteen thousand and twenty year olds can but those under eighteen cannot be on the  and under twenty one it's all right it's ok to be present but they are no not serve alcohol that's correct and not serving alcohol of course the second failure of the just of course analysis on the substantiality requirement not only did he fail to show that was real but also that it was substantial this requires that steam shouting both an absolute sense and a real and in a relative sense first on the absolute side of the analysis there are five conditions that have to be met for one of these hypothetical perceived in appropriate applications statue first you have to have a liquor license see number two that would be not be an adult entertainment establishment number three that would have highbrow artistic the entrepreneur ocean's number four that have to have nudity involved in those productions a number five that in the would have to be done by eighteen to twenty year olds that's an infant testament portion of the attentional avocations of the statute of which no such applications are identified in the district court the supreme court's cases from stevens to the new york state club association case show that just some of her breath or envisioning some in permissible application of the statues insufficient for facial validation rather in those cases the court has to consider the social costs that  occasioned by the overhead doctrine and have to engage in case by case adjudication to allow those applications to play out the second significant failure of the district court's analysis which he refused to address or rely upon the commissioner's affidavit he gave two reasons for this both of which are flawed one is he said well ms lombard is not always going to be the commissioner there's no support in the federal case law anywhere for such it disregarding other enforcement agency heads affidavit in this context that would have this rate the supreme court's rule that the federal courts when evaluating state statutes consider any narrowing construction that the agency is proffered the second reason he gave for ignoring the affidavit was it's not the role of the federal court to look at it and agencies interpretation of that statute and that of course is just plain error that's an legal error under ward versus rock against racism and this court's case baby dolls vs city of dallas it was the duty of the courts to look at any narrowing construction that may be placed upon the statute and baby dolls of course it was the city attorney who said we have an established history of not applying the sexually oriented business regulation outside the adult entertainment context he also said this is the interpretation i gave to the statute and failure to consider that affidavit in this context and to rely upon it is an affront to principles both comedy in federalism and also is specially inappropriate in a case like this where conduct in a more so at the time you wrote here's what do you make of that decision completely distinguishable in fact it's the opposite of this case in serafin you had a regulation of peer speech which is the practice of psychology you had a broad interpretation by the agency head on that and then impermissible application of the statute that led to the case that got here to this court and in that case the agency had testified at trial that he didn't know whether weight watchers or golf lessons would fall within the statute prohibiting the practice of psychology and somebody who wasn't  that the circle in which the same conclusion here but it was a significantly different case and one that cuts in our favor we believe the second claim is the biggest claim that like to address that next for twenty years the language entertainers whose breasts are buttocks are exposed the view has been part of the statute it's never been found to be that there's never been alleged confusion about the application of a statue certainly the terms of dress and buttocks are not de gun the dodgers bar and grill case the genus versus what's case in the adult entertainment context at all that and more importantly the prohibition is not against being an entertainer whose present buttocks are exposed it's against being that person under the age of twenty one which is an objective standard and or not on a stage that's eighteen inches above the floor or at least three feet from the nearest patron opposing counsel show both some louisiana statute if i recall correctly as well as from a location that have been more specific of what we're dealing with or defining what it means not to have that exposed at all th exposed i'm concerned about this x back to your case it does seem to me some statues define it better say everything below a certain level on the press and maybe some other way defining what else has to be covered isn't this completely without any definition of what has to be covered no one paramount that is exposed in everyday life by people they would be considered part of the press one those are the regulations a clickable the shocker us and it specifically says here is the entire the chakras have to where you can expose these particular things and then in subsection d is the prohibition on total nudity and actual sexual touching and things like that  not unlawful to be an adult every the answer only to be one within two feet of a patron your honor as far as how much would be covered throughout the briefing below the state took the position that a bikini a normal bikini that would cover the buttocks in the cover the press would satisfy the statu you consider that to have the same weight in this case as the commissioner's limiting instruction limiting definition yes your honor it would because the state state in order to it that way it seems to me in the briefing that this is the equivalent of what only applied and entertainment menu that's correct you haven't argued that in the same way for the bikini argument well this is also if i understand your question correctly the bikini covering would take you there and i think if they cover it completely your honor cover how you want to finding cover cover totally caught cover a little bit of a pace to cover are a bikini top cover your honor the language in the stand she is really exposed to view and  suppose the entertainer sees breasts and bugs are exposed he shall comply or shall be on the station agent and here's here's the point on that there is an objective standard always when there was no confusion as to these women these women all testified and used to be erotic entertainers but as of the date of the act i couldn't do that so i became a shuttle parker vs lead a levy says one whose conduct is clearly covered by a statute cannot successfully challenge it as void for vagueness the words of they want to talk about the hypothetical new person that comes in and that may be one thing but these entertainers profess no confusion about the application of the statute they're kind of because they're under twenty one when they file the complaint and therefore they will not one of case from the supreme court the united states where the two adult theaters said well we don't know how much of the film must be dedicated to sex acts and knew the before the film can be said characterized by an emphasis on sex acts in italy and the supreme court said we refuse to consider either the vagueness claim or the third party standing claim the overbred in the abstract because whatever confusion might exist these two adults these two theaters proposed to offer adult fare on a regular basis just like these dancers in this case were a lot of entertainers probably a g string on a daily basis but in a facial challenge they said the facial challenge was inappropriate for four reasons number one they said the regular practice of these clubs to offer adult fair number two they said that in most cases the answer would be read oblique answerable the answer would be readily apparent because the film would show enough new t v to be characterized by an emphasis on in this case if they're dancing the normal dancer tire which would be paces in g s during they're going to be showing their buttocks  minus the nipples and the other parts and that would be readily apparent and then finally your honor and their own construction is available and the bikini construction is very reasonable and then finally the court said that there is a less vital because there's nothing mean if in twenty years in the statutes existence they've never applied to the some things that's potentially at the border the commissioner can take the position as she did in the district court that a bikini with avoid this statute dancers can advance in these clubs in a bikini or they can also dance in non nude club or nonalcoholic clubs totally nude and the number three it's not targeting the message because those over the age of twenty one can dance as they always have so for those three hundred five it's the statute as it's existed for twenty years because those claims both of those claims really go not to the objective twenty one year old age requirement but the preexisting  i think there's pretty clear authority in the circuit that this court's job is not to rewrite states that shoots many of the cases that the government sites are federal cases and opening federal statutes that's a different situation this is a federal court dealing a state statute aware of any state court that has construed the language we're talking about today and judge southwick iraq or shouldn't binion just a few years ago in the service employees case rescinded that we take the state and local regulations as we have been given them take taking a step back you also asked about whether the a t c or the attorney general can argue in a legal brief in the context of this litigation that the statue is not bad because understanding in fact if you look at the legislative debate it's pretty clear that the legislature thought that this was a complete ban they didn't want under it under twenty one year old women in strip clubs and that in fact before the law became  before the law was in porous commissioner lombard or so was it was it's that interpretation of the law this is a an increase in the minimum age of who can be a dancer in a strip club and there's a news article in the different interpretations before we filed the lawsuit this was a total ban she was going around telling clubs get your under twenty one year old women out of these clubs now we get into litigation we're a significant first amendment equal protection other issues and the fact that the or between certain ages from being a strip club it limits what they can do inside the strip so is there really a change in any relevant way when the statute says which it is you take statutes as you find him or as a regulations  state want to protect these women the first number protects us from the government and the vagueness doctrine requires the government to give us spare notice of what is we have a good judge coming or your question is what right is the issue we don't know what this law me about why that's the case because that would lead to a legislature passing the broadest most i guess legislature potentially being lazy and not relying on the court to come in after the fact and fix a form that's not anything blank right now which shows i haven't been slamming thank you very much saying very thing i was trying to make up and ballet dancers that's that's a very isolated part of what we're dealing with is it fair to say this is an overbroad statute and again i and fully litigate this matter he can change his mind on some of the stuff he's making a prediction so he looks at the statute this regulation is in the general alcohol code unlike texas we don't have a specific sexually oriented business code in easy and so this law applies to any alcohol license establishment and there are probably thousands if not tens of thousands of them in the state most people talk about you know theater and ballet there are any number of other potential applications anyone with an out of an art museum all sorts of things and the district court didn't do a whole lot of analysis but he suggested that he had a little doubt that this law swept up a substantial amount of protected speech seat in the supreme court in stevens i think this is an important case there's some there's some confusion in the law about these limiting constructions the supreme court in stevens in two thousand and eight said that the court should not uphold a statute merely because the government promises to use it responsibly right again the first minute protects us from the government the court went so far as to say that the mere need to propose eliminate instruction is an implicit admission that the statue's overbroad why do we need her limiting instruction if it's clear that it will be applied outside of the sexually oriented business context that learning correction may keep it from sweeping in any legitimate legislature what to do but their case law there's case they were english and it wouldn't but there are cases that talk about these mainstream exceptions there are a number of states that and this is discussed in the legend like club case of the fourth circuit there they were analyzing american law there was no mainstream exception and it was held to be overbroad the court compared that to a prior case the fourth circuit had discussed the north carolina law that did have this mainstream exception so these these limited constructions that they're asking the court to adopt for them legislators have written them into statutes like this and part of constitutional law is nothing exotic that the state is asking for here to recognize and limiting instruction and there's plenty of case law where we do that want you to know the stevens case again it's the courts are very hesitant to adopt islamic instructions when they're not they're not based on the text of the statu of that in my money's ok potentially i would see all these business owners or people potentially affected who run the clubs screamin their you know this is big i don't know what it means boom boom sell alcohol boom boom boom sort of none of their so you know mike asking ok three individuals don't get me wrong i'm not suggesting that that minimizes whatever bad talent claim is but it just won't last domi you know beverage regulation and such which a stance that would cover the businesses as opposed to the individual right so to your point just being so assuming some violations whatever it might be of it it's within the alcohol satch of which obviously regulates all those who have these steps and this ain't is you know quote not to question earlier people can be below twenty one and be in there but it's just on what a state has to show to justify the sort of restriction on expression for example this record gave an awful lot of credit to the states post in acme evidence things like that you can't make this stuff up things like the regulation is justified because eighteen to twenty year olds have lesser developed brains that was not mentioned in the legislative debate but it's an argument that the state has has put forward in litigation they put into declarations from doctors on that they're into the same adults who can vote for these legislators or lead a platoon into battle in iraq and they can't make decisions about how to protect themselves a point adjudication of the claims but given that the posture we thought that there could be some value in the court giving the district court some guidance on the first amendment because his analysis on that issue again seem to not take account we're interested in and the remainder that he did not which i just overlooked it didn't consider it an all equal protection argument it changed me that would be some novel law if  we maybe got to that without mightn't from the district court first dealing with it i would tend to agree i mean a court up the court has the the ability to affirm alternative grounds and we think that this injunction should be and should be affirmed on the basis that on the two grounds the district court but forward but again if the court were to disagree with the district court's finding on vagueness in over breath it could addressed these other claims in the first instance but vagueness about the phrase entertainers press or ballots are covered and they're saying the court has some concerns about that but the laws been on the books for twenty years and there's never been a suggestion that people didn't know how to comply with that who would be covered by the statute and that shows that the risk of impermissible applications are chilling and speech is particularly not well founded we cited two cases that i think were helpful in our brief at page forty seven page eight of our reply brief and the first one is a dodge bar and grill versus johnson county this  common understanding of the term supplies a clear enough standard by which one could avoid the prohibition and we will not strike down legislation is of a when a court could quote extrapolate the ordinances allowing it will mean including their signing janay as versus willetts which is the eleventh circuit bikini would cover it literally the the difference between this you know ninety percent or eighty percent of blacks and eighty two percent that's the particular type of case that in a facial pre enforcement challenge to a stating terms bryson but it's there just in comprehensible on its face remember under sit in city of cincinnati versus codes the standard is not whether there's a normative standard that somehow difficult and uncertain sometimes but rather whether it's so vague that there's really no involved i mean one thing to say is mention there's something else to be saying it's been utilized and people understood what it meant well the only case that was reported that we know of is larsen versus state and that's where sam was doing thought on the in the foxy lady strip club in another parish in the state of louisiana and that application was clear and that that's really what young versus american many theatres says for the most part the application is going to be readily and civil and the normal case we're going to know exactly where the statute is if someone wants to bring a but if you look at even if you were to reverse on the over bet determination and you had some question about the vagueness we think the dish heard on that but if you look at the briefing on the remaining four preliminary injunction factors in this context because of the countervailing secondary effects evidence interest that the state has any even if you find a likelihood of success on the merits that does not merit an injunction especially when a state is harmed because they cannot enforce their