Crownover v. Musick

TOBRINER, J_

I dissent.

I sympathize with the majority in its valiant and erudite effort to uphold this legislation and these ordinances, and to fit elusive, changing, and often distasteful practices into neat categories of prohibition. Unfortunately we deal here with a subject matter that, as the courts have too often found, invites ambiguous strictures that inadvertently reach too far and wide. The legislative attempt at regulation not only fails, but extends beyond the intended purpose and catches within its fold the constitutionally protected.

At the outset, I would emphasize that I see no constitutional objection to the statute or the ordinances as to the regulations of waiters or waitresses who serve food or beverages; I see no element of communication in this activity that deserves constitutional protection.

In extending its proscriptions beyond those who serve food or drink to those who are entertainers, however, this legislation obviously reaches too far and too wide and illustrates the overbreadth that, as I have noted, often attends these prohibitory enactments. This overreaching is perhaps most obviously revealed by the state enactment which authorizes ordinances which prohibit male entertainers from performing when bare-breasted.

The prohibition of the male bare-breasted entertainer, in this day and age, is for all the reasons set forth in this dissent an infraction of the constitutional protection of communicative entertainment, and, in addition a somewhat ludicrous example of overbreadth. I shall point out that the ordinances violate the Constitution to the extent that they regulate the *432 presence or absence of costumes for male or female entertainers, but even assuming the validity of the regulation of the bare-breasted female entertainer, I submit that no case can be made to forbid the performance of the shirtless male entertainer. The custom of exposing the upper portion of the male body is universal at beaches, swimming pools, and at all manner of places; a statute that presumed to mandate the wearing of shirts, even for “the entertainer,” upon the basis that it promoted or preserved “morality,” must fail because it reaches far wide of its announced mark and far beyond any rational purpose. Yet “[precision of regulation must be the touchstone” when First Amendment rights are implicated (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 438 [ 9 L.Ed.2d 405, 421 , 83 S.Ct. 328 ]); overbreadth is fatal to the survival of the enactment. (See, e.g., Coates v. City of Cincinnati (1971) 402 U.S. 611, 616 [ 29 L.Ed.2d 214, 218 , 91 S.Ct. 1686 ]; N.A.A.C.P. v. Button, supra.)

There can be no question but that the statute purports to undertake this grand sweep of male and female “nudity” within its scope; it sanctions the ordinance that “regulates the exposure of the genitals or buttocks of or the breasts of any person who acts as a waiter, waitress or entertainer.” 1 (Pen. Code, § 318.5.) (Italics added.) Hence, it encompasses the prohibition of the exposure of the “breasts” of a male entertainer. That the draftsman intended to include the male entertainer is borne out by the specific reference to the “breasts of any female participant” in the following section 318.6; the inclusion of the male, as distinguished from the female, in section 318.5, must have been deliberate. The broad, loose language of that section would cover such entertainers as the shirtless crooner, the member of a rock band, the principal character in Eugene O’Neil’s “Emperor Jones,” and an endless list of bare-breasted actors. The lengths to which the statute apparently goes in the regulation of entertainment leads us into a legalistic theater of the absurd.

The ordinances cannot stand unless the state legislation protects them against the attack that they invade the area of regulation of sexual activities preempted by the state, (In re Lane (1962) 58 Cal.2d 99 [ 22 Cal.Rptr. 857 , 372 P.2d 897 ]; People v. Hansen (1966) 245 Cal.App.2d 689 [ 54 Cal.Rptr. 311 ].) The state legislation is vulnerable, as I have explained, to the charge of overbreadth; if it fails, the ordinances, presumably, cannot stand. But I shall proceed to assume that the ordinances do not succumb to this attack; I shall weigh them independently in the constitutional *433 scales; I shall point out why the ordinances as applied to female and male entertainers, dangerously intrude upon constitutional protections.

The principle that communicative entertainment constitutes a protected mode of expression under the First Amendment is a basic proposition not subject to question. That protection dates from the decision of the United States Supreme Court in Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495 [ 96 L.Ed. 1098 , 72 S.Ct. 777 ], which struck down a New York statute banning sacrilegious motion pictures. The court stated that: “It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” ( 343 U.S. at p. 501 [96 L.Ed. at pp. 1105-1106].) Subsequent decisions confirmed that the First Amendment protects films attacked for portrayal of nudity or sexual behavior. (Jacobellis v. Ohio (1964) 378 U.S. 184 [ 12 L.Ed.2d 793 , 84 S.Ct. 1676 ] [“Les Amants”]; United States v. A Motion Picture Film (2d Cir. 1968) 404 F.2d 196 [“I Am Curious— Yellow”].)

The reach of the First Amendment does not depend upon tiae recordation of a performance on film; the live theatre is a medium of social expression equal in emotional appeal to the motion picture. Thus the courts have extended the protection of the First Amendment to dramatic stage productions (Barrows v. Municipal Court (1970) 1 Cal.3d 821 [ 83 Cal.Rptr. 819 , 464 P.2d 483 ] [“The Beard”]), to musical shows (P.B.I.C., Inc. v. Bryne (D.Mass. 1970) 313 F.Supp. 757 , vacated to consider mootness (1971) 401 U.S. 987 [ 28 L.Ed.2d 526 , 91 S.Ct. 1222 ] [“Hair”]), to guerrilla theater (Schacht v. United States (1970) 398 U.S. 58 [ 26 L.Ed.2d 44 , 90 S.Ct. 1555 ]), to topless dancing (In re Giannini (1968) 69 Cal.2d 563 [ 72 Cal.Rptr. 655 , 446 P.2d 535 ]) and to burlesque (Hudson v. United States (D.C.App. 1967) 234 A.2d 903 ; Adams Theatre Co. v. Keenan (1953) 12 N.J. 267 [ 96 A.2d 519, 520 ] (dictum)). 2

*434 This court ruled on the subject of nude entertainment in In re Giannini (1968) supra, 69 Cal.2d 563 , which involved criminal charges against a topless dancer and her manager. Overturning convictions of lewd exposure (Pen. Code, § 314, subd. 1) and lewd conduct (Pen. Code, § 647, subd. (a)), we held in that case, that “[t]he performance of a dance for an audience constitutes a method of expression that, in the absence of proof of obscenity, warrants the protection of the First Amendment.” ( 69 Cal.2d 563, 567 .) We reasoned that: “. . . all forms of communication, not merely the expression of concrete and definite ideas, potentially receive First Amendment protection. ‘We do not accede to appellee’s suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. . . . Though we see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.’ (Winters v. New York (1948) 333 U.S. 507, 510 [ 92 L.Ed. 840 , 847, 68 S.Ct. 665 ].) ‘Also encompassed [within the right of freedom of speech] are amusement and entertainment as well as the exposition of ideas.’ (Weaver v. Jordan (1966) 64 Cal.2d 235, 242 [ 49 Cal.Rptr. 537 , 411 P.2d 289 ].)’ In the light of this approach, the performance of the dance indubitably represents a medium of protected expression.” (69 Cal.2d at pp. 569-570.) (Fns. omitted; italics in original.)

We pointed out in Giannini that, “[o]f course, a conclusion that Iser’s theatrical dancé prima facie gains a First Amendment protection does not affect the central question presented in this case; whether her performance loses this privileged status because it is obscene.” (69 Cal.2d at pp. 570-571.) Obscenity, however, requires proof that the material presented affronts contemporary community standards; since the state presented no evidence of community standards, we concluded that the convictions must be reversed.

In Barrows v. Municipal Court (1970) 1 Cal.3d 821 [ 83 Cal.Rptr. 819 , 464 P.2d 483 ], we issued a writ of prohibition to prevent a criminal prosecution based on a simulated sexual act in a play. We stated as a primary proposition “that live plays performed in a theater before an audience are entitled to the same protection under the First Amendment as motion pictures . . . magazines . . . and newspapers . . . .” ( 1 Cal.3d *435 at p. 824 .) 3 Later in the opinion we declared that “Dramatic license would not supply indulgence for the actual murder of the villain, the rape of the heroine, or the maiming of the hero. Neither do we intend to imply, however, that conduct or speech in a theatrical production is to be judged by the same standards as conduct or speech occurring on the street or other public place. Giannini makes it clear that ‘acts which are unlawful in a different context, circumstance, or place, may be depicted or incorporated in a stage or screen presentation and come within the protection of the First Amendment, losing that protection only if found to be obscene.’ ( 69 Cal.2d at p. 572 .) We particularly reaffirm this portion of the decision in Giannini , for any more restrictive rule could annihilate in a stroke much of the modern theater and cinema. The loss to culture and to First Amendment rights would be equally tragic.” (1 Cal.3d at pp. 830-831.)

The recent decision of the United States Supreme Court in California v. LaRue (1972) 409 U.S, 109 [ 34 L.Ed.2d 342 , 93 S.Ct. 390 ], adheres to this line of precedent. LaRue passed upon a regulation which, in addition to banning live or filmed sexual acts, prohibited the actual or simulated display of the genitals by entertainers in bars and nightclubs. Although observing that the prohibited performances “partake more of gross sexuality than of communication” ( 409 U.S. at p. 118 [34 L.Ed.2d at pp. 351-352]), the court found a sufficient communicative element to declare its agreement with the district court that “these regulations on their face would proscribe some forms of visual presentation which would not be found obscene under Roth and subsequent decisions of this Court.” ( 409 U.S. at p. 114 [ 34 L.Ed.2d at p. 349 ].) The court explained, however, that the issue arises “in a context of licensing bars and nightclubs to sell liquor by the drink.” (Ibid.) Noting that “the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals” (Ibid.), the court sustained the department’s conclusion “that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place simultaneously.” (Ibi d.)

The court proceeded to hold that “While we agree that at least some of *436 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 which it licenses to sell liquor by the drink.” ( 409 U.S. at p. 118 [ 34 L.Ed.2d at p. 352 ].) (Italics added.)

In the present case, the critical fact is that Orange and Sacramento Counties have forbidden nude entertainment across the board, without respect to whether the place of entertainment serves alcoholic beverages. The majority’s attempted distinction of LaRue upon the ground that it distinguishes between “movies” and “live entertainment” not only directly contravenes the language of LaRue but also violates common sense. The extraordinary powers conferred upon the state 'by the Twenty-first Amendment, which saved the alcoholic beverage regulations from unconstitutionality in LaRue , cannot save the ordinances before us now. I conclude that these ordinances on their face proscribe some forms of visual presentation which may properly claim protection under the First Amendment, and consequently that the ordinances must be found unconstitutional.

The message of all of the decisions is clear: except when exercising its extraordinary powers under the Twenty-first Amendment, the state may not ban nonobscene entertainment. But the majority believe they have found a road around this formidable constitutional protection. Entertainment, they assert, can be dichotomized into speech and conduct; the state need not touch speech, but by barring conduct associated with that speech, the state may effectively proscribe entertainment.

The adoption of this theory would let the censor loose without constitutional restriction to condemn at will any and all communicative entertainment. While avoiding reference to the actor’s speech, the state could ban his gestures, his costuming (or amount of costuming), the positioning of the actors, the lighting of the stage, or whatever other “conduct” it chooses. Nor is the logic of .the majority opinion confined to entertainment in bars or restaurants; it applies equally to the legitimate theater and to the motion picture. Neither is the logic of the opinion confined to the subject of nudity. If a county seeks to prohibit entertainers, or participants in a public demonstration, from wearing long hair, unfashionable dress, or uniforms (cf. Schacht v. United States (1970) supra, 398 U.S. 58 ), the majority opinion can be construed to uphold such legislation.

The majority opinion, indeed, dangerously destroys long-held, laboriously built constitutional protections of the communicative arts. As of this *437 writing a metropolitan newspaper carries a full front page picture of bare-breasted male and female dancers of Senegal who are performing in the San Francisco Bay Area. 4 Similar productions are the Ballet Africains and a myriad of other ethnic dances. The majority’s metaphysical severance of speech from “conduct,” (or the extent of costumes) would permit the prohibition of such “nude” dancing. Of course the majority hasten to assure us that the ordinances, as drafted, do not regulate such performances if given in a “theater,” but, assuming that questionable position, we can find no similar limitation in the majority’s rationalization for their ruling. The rationalization, the ruling, the holding, is that “nude” conduct can be differentiated from speech or communication and, as such, subjected to regulation or prohibition. At one stroke of the pen the majority have thereby tom down the constitutional protections of the communicative arts, exposing the drama, the motion picture, the dance, the opera, the visual arts, sculpture, and communicative entertainment in general, to unbridled censorship. The careful delineation of constitutionally protected expressions as opposed to those that are obscene under the decisions is apparently no longer viable. The rulings are circumvented by the new conduct-communication fictitious dualism.

If we accept the conduct-speech dichotomy, enabling government thereby to proscribe “conduct,” what remains of constitutional protection for communication of ideas? The Legislature could enact legislation prohibiting the “conduct” or performance of any play, opera or ballet that the censor deemed “subversive” or “revolutionary.” Under the theory of the majority, the “speech” in the play, opera or ballet would not be proscribed but only the conduct, consisting of the acting and the physical movements of the performers or “entertainers.” The constitutional protection of free speech as heretofore developed in the cases would not apply. If the majority’s destructive doctrine were to be followed, the First Amendment’s protections of the communicative arts as expressions of free speech would be obliterated.

The fallacy of the majority’s attempt to split speech from action is excellently expressed in the dissenting opinion of Justice Marshall in LaRue . He observed that “If . . . movies, plays, and dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is ‘speech’ within the meaning of the First Amendment, but that the individual gestures of the actors are ‘conduct’ which the State may prohibit. The State may *438 no more allow movies while punishing the ‘acts’ of which they are composed than it may allow newspapers while punishing the ‘conduct’ of setting type.” 5 ( 409 U.S. at p. 130 [ 34 L.Ed.2d at p. 359 ].)

In like vein I suggest that the costuming, or lack of costuming, of an entertainer or dancer is an integral component of the entertainment or dance. 6 To require the entertainer to wear costuming inappropriate or hampering to his role is simply an indirect way of banning the entertainment.

Barred by the present law of obscenity from sustaining the ordinances, the majority seize upon a doctrine that is not applicable to the problem at all. The majority turn to a decision, United States v. O’Brien (1968) 391 U.S. 367 [ 20 L.Ed.2d 672 , 88 S.Ct. 1673 ]. that involves symbolic free speech, a case that is entirely factually distinguishable from the present one, and that develops a theory alien to the instant issue.

The facts of O’Brien do not remotely resemble the present case. O'Brien was accused of violating an amendment to the Universal Military Training and Service Act of 1948 prohibiting- the knowing destruction of a draft card, ( 50 U.S.C. § 462 (b).) This amendment, the court stated, “deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views.” ( 391 U.S. at p. 375 [ 20 L.Ed.2d at p. 679 ].) Concluding that the amendment was directed solely at the proscription of conduct unrelated to protected speech, the court upheld the constitutionality of the enactment on its face. (See 391 U.S. at pp. 381-382 [20 L.Ed.2d at pp. 682-683].)

O’Brien contended, however, that he burned his draft card to protest against war, and consequently that the act as applied to him was unconstitutional. He claimed that his protest came under the rubric of free speech because it was “symbolic speech.” The court stated that it could not “ac *439 cept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” ( 391 U.S. at p. 376 [ 20 L.Ed.2d at p. 679 ].) Yet the court did not entirely exclude symbolic speech from the protection of the First Amendment. It' concluded, instead that incidental governmental restriction upon symbolic speech was permissible, but only when essential to further an important or substantial governmental interest. (391 U.S. at pp. 376-377 [20 L.Ed.2d at pp. 679-680].)

The grounds for distinction between O’Brien and the present case are manifold. O’Brien involved a law which prohibited burning of draft cards wherever that conduct occurred, and which did not on its face aim at regulation of protected speech; the ordinances at bar proscribe nudity only when it occurs in the context of protected communicative entertainment. The act of burning a draft card bears no integral relation to protected communication; the costuming of an entertainer is unquestionably an integral part of the entertainment. The language in O’Brien on which the majority rely discusses the constitutionality of a law regulating conduct as applied to an act of “symbolic speech”; the present case concerns the constitutionality on its face of ordinances regulating protected activity.

Finally, and most important, in O’Brien the court extended limited First Amendment protection to “symbolic speech”—conduct which, normally noncommunicative, is invested with symbolic significance by the protestant. The present case has nothing to do with symbolic speech. It has nothing to do with protest. It concerns communicative entertainment, an activity which heretofore has been entitled not to limited but to full protection under the First Amendment. The majority opinion stands O’Brien on its head, transforming that case, which involved the extension of the First Amendment into the peripheral region of symbolic speech, into a weapon which renders the protected region of communicative entertainment vulnerable to the inroads of censorship.

I come now to the second step in the majority’s analysis.

The majority opinion very reluctantly assumes for the sake of argument that “there may be in some instances a ‘communicative element’ in conduct falling within the instant ordinances sufficient to bring into play the First Amendment” (at p. 427)—an assumption that I believe is compelled by the logic of the cases and the language of LaRue . It then sets out to evaluate the ordinances according to the fourfold test stated in O’Brien , and, after a brief and cursory examination, approves the ordi *440 nances. I shall develop the view that the majority misunderstand and misapply the O’Brien standards and that, under a proper application of those tests, the present ordinances fail on at least three of the four measures.

I reiterate the language of the Supreme Court in O’Brien: “This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” (391 U.S. at pp. 376-377 [20 L.Ed.2d at pp. 679-680].) (Fns. omitted.)

This language establishes a two-level test. Laws which do not affect the communicative element of conduct are constitutional if they fall within the police power or other authority of the state. Laws which involve incidental limitations on First Amendment freedoms, however, must meet a more exacting standard. The mere existence of a governmental interest in regulating such conduct will not suffice; that interest must be a substantial or important interest, unrelated to the suppression of free expression, and the law must not restrict free expression more than the minimum necessary to further the state interest.

This two-level analysis bears a close similarity to the approach used by this court and the Supreme Court in equal protection cases. “In the typical equal protection case the classification need only bear a rational relationship to a conceivable legitimate state purpose.” (Curtis v. Board of Supervisors (1972) 7 Cal.3d 942, 951-952 [ 104 Cal.Rptr. 297 , 501 P.2d 537 ].) “On the other hand, in cases involving ‘suspect classifications’ or touching on ‘fundamental interests,’ ... the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations omitted.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” (Westbrook v. Mihaly (1970) 2 *441 Cal.3d 765, 784-785 [ 87 Cal.Rptr. 839 , 471 P.2d 487 ], vacated on other grounds (1971) 403 U.S. 915 [ 29 L.Ed.2d 692 , 91 S.Ct. 2224 ].) 7

Throughout both the equal protection cases and O’Brien and its predecessors runs a common theme: when a law touches upon a fundamental interest—and protected First Amendment communication is clearly a fundamental interest—the courts must subject that law to close and critical scrutiny, must determine what state interest the law will further, and must measure that interest to see if it can properly be described as of “compelling,” “substantial,” or “important” character. And then the courts must further examine the law to be sure that it infringes upon fundamental rights no more than absolutely necessary to further the interest of the state.

Mindful of our obligation to subject these ordinances to an active and critical analysis, I take up the four tests set out in O’Brien . The first test is that the law must be within the constitutional power of government. Unlike the majority, I find it quite doubtful whether the government has an inherent power to regulate nude entertainment in bars and restaurants. I have no doubt that it may regulate nudity on public streets, where such behavior may offend bystanders; on the other hand, the government asserts no interest in banning private nudity, and probably lacks the power to do so. Bars and restaurants fall in between these extremes. Although not as private as individual homes, nevertheless the nudity within bars and restaurants is not visible from public streets or sidewalks. The customers who enter such establishments do so voluntarily, knowing they will view nude entertainment, and choosing to do so. There appears to be no evidence that either the customers or the entertainers suffer the slightest harm from the experience. The majority’s assumption that the state has the power to ban consensual adult behavior, harmful neither to participants nor bystanders, on the ground that some nonparticipants deem that behavior immoral, is certainly open to dispute. 8

I shall, however, assume for the sake of argument that the state has *442 some interest in regulating nude entertainment in bars and restaurants, so that we may proceed to the second issue under the O’Brien test: whether that state interest can fairly be described as “substantial” or “important.” The majority opinion asserts that “it cannot be gainsaid that the regulations further ‘an important or substantial governmental interest’ [citing O’Brien, 391 U.S. at p. 377 ( 20 L.Ed.2d at p. 680 )] in promoting public morals.” (Ante, at p. 427.) But the rest of the majority opinion does not discuss that grand abstraction: the state’s interest in promoting a moral society. The opinion, instead, discusses the state’s interest in regulating nude conduct. While I do not dispute that the promotion of the truly moral society is a laudable public purpose, I can and do maintain that banning nude entertainment will not contribute in any significant degree to this end; or, in other words, that the state's interest in banning such entertainment cannot be considered a substantial or important interest.

Persons viewing or creating nude entertainment are adults who voluntarily choose to do so. 9 Presumably the audience derives some satisfaction from the performance or they would not attend; presumably the performers derive some benefit or they would not perform. Neither are harmed. The performance may be tawdry and vulgar, although the ordinances are not limited to performances of such character; in any case the state’s interest in elevating the public taste is among the least substantial of its interests. 10 The majority assert that bars offering nude entertainment may blight a neighborhood; so may auto junkyards; the solution to both cases lies in proper zoning.

Indeed, the majority’s argument is reduced to the assertion that whenever the majority of voters of a county, or their representatives, deem certain behavior immoral, it follows ipso facto that (a) the behavior really is immoral, 11 (b) the state has an interest in suppressing the behavior, *443 and (c) that interest is so compelling, so substantial and important, that it justifies restrictions on First Amendment communication. This nonsequitur recitation is not the sort of active and critical analysis required in cases which touch upon fundamental rights: to the contrary, it reduces to an assertion that the mere fact that a county wants to ban nude entertainment somehow proves that such legislation is constitutional.

The third requirement under O'Brien is that the governmental interest be unrelated to the suppression of free expression. As I pointed out earlier in this opinion, the ordinances at bar do not ban nudity generally: they regulate the costuming (nudity or simulated nudity) of entertainers. Thus the governmental interest underlying these ordinances, whatever its exact dimensions, must be an interest in prohibiting a type of entertainment. Such an interest cannot be classed as one unrelated to the suppression of free expression.

The fourth test is that the law impose no greater restriction than is essential to the furtherance of an important of substantial governmental interest. This test requires'us to identify the governmental interest in question. If it is to prohibit nude entertainment, then the ordinances go further than necessary in banning the simulation of nudity; if it is to avoid neighborhood blight, they go further than needed in banning such entertainment regardless of location; if it is to eliminate the tawdry and vulgar, they go too far in banning all nude entertainment of whatever sophistication or refinement. Nowhere in the majority opinion can 1 discern a state interest which so closely parallels the ordinances that they could be said to proscribe no more than is necessary to further that interest.

If compelled to describe the state’s interest in regulating nude entertainment before voluntary- adult audiences. I should be constrained to use the antonyms of the terms set out in O'Brien; 1 would describe that interest as "noncompelling,” ‘‘unimportant.” “insignificant,’' and "dubious.” I would conclude that such an interest does not justify any restriction upon protected expression.

*444 In conclusion, I address a brief comment to the objectives of these ordinances. We live in an era in which political censorship is, fortunately, rare, and religious censorship virtually nonexistent; the hand of the censor today is largely directed at preventing or impeding the communication of sexual ideas and emotions. The censor has little evidence that such communication is harmful, and little rational basis to term it immoral, but sometimes neither evidence nor reason can prevail with a man imprisoned in his own prejudices. He can, with greater justice, describe much sexual communication as vulgar—although the courts can hardly serve as the appointed monitors to stamp out “vulgarity.” (Cohen v. California (1971) 403 U.S. 15, 25 [ 29 L.Ed.2d 284, 293-294 , 91 S.Ct. 1780 ].) 12

Nevertheless, the courts have permitted the censorship of communication or entertainment to a limited extent by holding that obscenity is riot within the protection of the First Amendment. The Legislature, pursuant to this permission, has in Penal Code section 311.6 declared that obscene live conduct before an audience is a misdemeanor. But both the courts and the Legislature have been careful to assure that censorship stays within bounds by insisting that conduct is not obscene unless it exceeds customary limits of candor and lacks redeeming social importance.

If the present ordinances merely proscribe obscene entertainment, they would duplicate Penal Code section 311.6 and accomplish no useful purpose. These ordinances, however, serve a more invidious end: to ban nude entertainment even when such entertainment does not exceed customary limits of candor or does possess redeeming social importance. In so doing they destroy the balance struck by the courts between the interest

*445 of the people in open communication and the lesser interest of the state in censoring obscenity; they extend the criminal sanction into a region of protected expression. 13

Mosk, J., concurred.

The petitions of the respondents in No. 29917 and of the appellants in Nos. 7904 and 7905 for a rehearing were denied May 30, 1973. Tobriner, J., and Mosk, J., were of the opinion that the petitions should be granted.

“breast. ... 1. The fore or ventral part of the body, between the neck and the abdomen; the front of the chest; as, the breast of a man.” (Webster’s New Internat. Dict. (2d ed. 1957) p. 330.)

This protection does not extend to bar suppression of obscene performances. But “obscenity” is a term of art in constitutional law. It cannot be equated with nudity (see People v. Noroff (1967) 67 Cal.2d 791 [ 63 Cal.Rptr. 575 , 433 P.2d 479 ]) or vulgarity (Cohen v. California (1971) 403 U.S. 15 [ 29 L.Ed.2d 284 , 91 S.Ct. 1780 ]). A performance is obscene only if it violates Penal Code section 311, which defines obscenity as follows: “ ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; *434 and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.” (See also Memoirs v. Massachusetts (1966) 383 U.S. 413, 418 [ 16 L.Ed.2d 1, 5 , 86 S.Ct. 975 ].)

Barrows’ reference to the First Amendment protection accorded to “live plays performed in a theater” ( 1 Cal.3d at p. 824 ) may account for the exception in Penal Code sections 318.5 and 318.6, and in the ordinances before us, for performances in “a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.” But nothing in Barrows suggests that a play ceases to be protected expression if presented in some other building, nor that to qualify for such protection the “theater” must have moveable scenery and seats which bolt to the floor. (Cf. Schacht v. United States (1970) supra, 398 U.S. 58 [outdoor “guerrilla theater”].)

“This World,” edited by the San Francisco Chronicle, a section of the San Francisco Sunday Examiner and Chronicle, March 11, 1973, page 1.

I find nothing in the majority opinion in LaRue to suggest that the majority there rejected Justice Marshall’s analysis: to the contrary, the majority clearly recognize that the regulations at issue in LaRue restrict protected expression.

Cf. Schacht v. United States (1970) supra. 398 U.S. 58 , which held unconstitutional a federal statute which provided that "‘while portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.” (10 U.S.C, § 772(f).)

Accord: Serrano v. Priest (1971) 5 Cal.3d 584, 597 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ]; see Weber v. Aetna Casualty & Surety Co. (1972) 406 U.S. 164, 172-173 [ 31 L.Ed.2d 768, 777-778 , 92 S.Ct. 1400 ]; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578-579 [ 79 Cal.Rptr. 77 , 456 P.2d 645 , 38 A.L.R.3d 1194 ],

The LaRue majority’s statement that “the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public' health, welfare, and morals” ( 409 U.S. at p. 114 [34 L.Ed.2d at pp. 349-350]), followed by its reliance upon the Twenty-first Amendment to sustain the regulations, implies that the majority also doubts that the “normal state authority over public health, welfare, and morals” is sufficient to justify regulation of nude entertainment.

See Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 102 [ 84 Cal.Rptr. 113 , 465 P.2d 1 ]; In re Giannini (1968) 69 Cal.2d 563, 575-576, fn. 8 [ 72 Cal.Rptr. 655 , 446 P.2d 535 ]; Robins v. County of Los Angeles (1966) 248 Cal.App.2d 1, 12 [ 56 Cal.Rptr. 853 ],

As we stated in People v. Noroff (1967) supra, 67 Cal.2d 791, 796-797 , and reiterated in Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) supra, 2 Cal.3d 85, 102-103 , fn. 27: “The United States Supreme Court has wisely recognized that ultimately the public taste must determine that which is offensive to it and that which is not; a public taste that is sophisticated and mature will reject the offensive and the dull; it will in its own good sense discard the tawdry, and once having done so, the tawdry will disappear because its production and distribution will not be profitable. Understandably, such maturity does not come quickly or easily; and, in a time when the strictures of Victorianism have been replaced by wide swings of extremism, it seems hopelessly remote.”

In Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) supra, 2 Cal.3d 85 , we noted that “the courts of this state have recognized the in *443 conclusive and indecisive slate of the consensus of societs regarding the propriety and morality of public and quasi-public displass of female breasts" (2 Cal.3d at p. 101): and again that there exists “an obvious lack of societal consensus as to the morally permissible degree of diaphanous raiment and public deshabille" (2 Cal.3d at p. 102). I conclude from these observations that there is a "lack ol societal consensus” as to whether measures prohibiting the display of female breasts, or any other portion of the human body, will have any tendency to promote the public morals.

The history of the Cohen case is of some interest on the issue of distinguishing expression from conduct. Cohen was convicted of disturbing the peace after he walked through the corridor of the Los Angeles County Courthouse wearing a jacket bearing the words “Fuck the Draft.” The Court of Appeal upheld the conviction, reasoning that Cohen’s behavior consisted of both speech and nonspeech elements which, under the facts of that case, could properly be punished as “offensive conduct” under Penal Code section 415. (People v. Cohen (1969) 1 Cal.App.3d 94, 103-104 [ 81 Cal.Rptr. 503 ].) We denied a petition for hearing. The United States Supreme Court granted certiorari and reversed the conviction. (Cohen v. California (1971) supra, 403 U.S. 15 .) Its opinion states: “[W]hile the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” (403 U.S. at p. 25 [29 L.Ed.2d at p. 294],) I suggest that the majority in the present case are making the same error as did the Court of Appeal in Cohen: namely, assuming that vulgar expression is somehow not expression at all, but merely unexpressive conduct.

I dissent also from the majority’s resolution of the equal protection issue, which resolution rests upon the majority’s mistaken premise that the ordinances at issue here do not touch upon any constitutionally protected right.