The opinion
O’CONNELL, J.,
dissenting.
“The 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.” In re Giannini, 72 Cal Rptr 655, 446 P2d 535, 538 (1968). ① The complaint in the present case did not charge defendant with obscene conduct; she is charged only with exposing her breasts while “performing her duties as a dancer.” Therefore, it is not necessary to decide whether the city could constitutionally prohibit topless dancing as obscene conduct. If the ordinance had prohibited all dancing for an audience in a place where food and alcoholic beverages were served, I assume that the majority would treat the ordinance as an invalid limitation on First Amendment rights. A proscription limited to dancing with exposed breasts would also violate the First Amendment unless the ordinance were construed to apply only to obscene dancing.
The majority opinion reasons that “[wjhen nudity is employed as sales promotion in bars and restaurants, nudity is conduct,” and that “[a]s conduct, the nudity of employes is as fit a subject for governmental regulation as is the licensing of the liquor dispensaries and the fixing of their closing hours.”
*297 Defendant is willing to concede, I think, that “nudity” is “conduct” and subject to regulation. She takes the position, however, that “dancing” is “expression” and therefore is protected by the First Amendment unless it is shown that the dancing is obscene. If defendant’s position is sound, and I think that it is, the city cannot inhibit defendant’s right simply because it decides that her nudity may have an adverse moral effect on the community or that it might cause disturbances in the restaurant. Even if dancing were held to be entitled to less protection than some other forms of expression, certainly it cannot be prohibited merely because a part of the public, even a majority, regards non-obscene nude dancing as unacceptable. See Kingsley International Pictures Corp. v. Regents, 360 US 684 , 79 S Ct 1362 , 3 L Ed2d 1512 (1959). And assuming that such dancing may cause disturbances within the restaurant, there are measures short of depriving citizens of their constitutional rights which the city can employ to control such disturbances. ②
Denegre, J., concurs in this dissent.
The city of Portland concedes that dancing can be a form of expression. Appellant’s Brief, p. 17.
When such measures are available constitutional rights may not be infringed upon. United States v. Robel, 389 US 258 (1968); Schneider v. State, 308 US 147 (1939).