City of Seattle v. Buchanan

because fact inimical to the welfare of peo- ple state, of this I would reverse court below and dis- miss the action. Hicks, JJ., J.

Hamilton Rosellini, concur with September En 44199. Banc. [No. 1978.] Kelly Respondent, Seattle, Ann Appellants. Buchanan, al, et Seattle-King Lytle Muenster Sarah John R. Wershow, County appellants. Public and Dan for Defender Harris, Counsel, P. and Richard S. Corporation John Assistant, Oettinger, respondent. convicted J. The five were appellants

Rosellini, ordinance No. Court of violations Seattle Municipal 12A.12.150, "lewd conduct" and defining section genitals of one's making public exposure unlawful fined The unchal- They $100. female breasts. were each in that the were arrested lenged findings appellants show Arboretum, and they swimming where were the Seattle Two of completely exposed. with their breasts sunbathing during the a at some time them stood and tossed "Frisbee" engaged were not period appellants The exposure. to the evi- activity. According or communicative expressive Court, the appeal Superior dence introduced on the citizen to several response had been made arrests complaints. vio- question contentions that the ordinance

Rejecting Const, 61) (the (amendment equal rights art. 31 lates process, equal due amendment), and state as well as federal speech provi- and expression freedom of protection, convictions. These sions, Court Superior affirmed appeal. renewed on this contentions are rights "Equality provides: art. Const. § responsibility under the law shall not be denied or abridged on account of sex." far, only

Thus we have had one occasion to examine this Gould, provision.1 Darrin v. Wn.2d 540 P.2d 882 two young challenged women a refusal to allow team, play high them to football on the school grounded refusal was a upon promulgated rule a state- secondary wide association of schools. plaintiffs' evi- dence young physically showed that women were team, on capable playing requirements, met the team permission and had the of the school Against district. argument justified the rule was because most girls are incapable of meeting requirements, such this court held that was applied plaintiffs. unconstitutional to the gist holding eligibility the case was that must be determined on characteristics, individualized at least where equal sports access to programs is made available to sexes, both the absence of showing a the rule question serves a purpose rational based dif- upon actual present every ferences particu- member lar sex.

The appellants deny do not of a right municipal legislative body to enact laws for the protection pub lic peace, They order and morals. legislative concede that a body may apply only enact laws which to the members of sex, one provided are based on actual differences between They give the sexes. as an example the role of childbearing, and legislature state that could constitu tionally who, a pay bonus to a woman during given period (or time, to) birth to gave refrained from birth giving However, child. they contend that a which provided law bonus to women for and did not it to childrearing, provide provision by Appeals following in 1The has considered the Court of the been cases, presented in none of which was concerned with an issue similar to that this Hauser, (1976) (Division One); Smith v. App. In re Wn. P.2d 333 case: 548 Hara, Smith, One); Singer (1975) (Division App. Wn. 534 P.2d 1033 (Division One). (1974) App. P.2d Wn. equally capable men, invalid, would men of because are period rearing "beyond short of breast- children the " feeding. is is no difference Their contention here that there appearance of men and women suffi- between the breasts justify forbidding cient to law the the breasts a of assumption being other, of the it is one and not their that only inspired shape the size or of women's breasts which question. the testimony appellants physi- trial,

At of a the the offered cian, Cowan, no Dr. who said is differ- Charles that there composition ence in the of the flesh of and female male primary breasts; that the do form sex charac- breasts a secondary degree one, a teristic but and that the devel- opment said, in does not determine sex. He the breasts testimony, men clarification of this that some have latter large breasts as as those some small-breasted women.2 say there did not whether The doctor was not asked and the male and female is difference function between agree appellants is breasts, the that there we see that They give weight, however, it no evi- such a difference. legislative dently they intent, because, function view the body legislative in mind had which the is not an element public exposure of female breasts. when it forbade the agree body legislative We are unable could only shape have been interested in the size or of female among parts breasts when it included them body exposed public. human which should not be It is ap appellants' testimony brief letter 2Dr. fortified Cowan's Steir, respondent physician, pended Dr. which another Bruce thereto from testimony nothing to the justifiably of substance asks us to strike. The letter adds Cowan, with no We note have reason doubt. Dr. of which we correctness Steir, elaborating phenomena upon the breasts Dr. interest comparable develop of women those to a size at which some men usually breasts, development endoc explains of some result that such small story, only part doctors' evidence tells rine or other disorder. Since the us, we need not part before we not find determinative issue do only physical legal impact similarity some results consider in one of the sexes. malfunction manifest from a of the section reading as whole3 that the City Council was concerned with body those and parts which, functions according society's common of sense decency, private. should be kept These include the elimina- tive functions and the procreative respect functions. With latter, to the it found was to be the public interest concealed, order in addition to the the genitals, female breasts, which, breasts, unlike male erogenous constitute an zone and are commonly with associated sexual arousal.4 The lawmakers no doubt took account of the fact that breasts can be kept covered public without inconve- nience, they perform since no function which necessitates being their exposed public view.

3 "Section 12A.12.150 Lewd Conduct

"(1) As used in this section a 'lewd act' is: "(a) genitals breasts; or one's female "(b) touching, caressing fondling genitals or or female of the breasts; or "(c) 12A.04.140(l)(c); sexual intercourse as defined Section or "(d) masturbation; or "(e) place urination or in a defecation other than a washroom or toilet room. "(2) person guilty intentionally performs any A of lewd conduct if he lewd public place place act in a or at under circumstances where such act could by any public. be observed member "(a) 12A.12.020(l)(a). place' meaning 'Public has the defined in section "(3) owner, manager operator open premises public to the wherein sold, beverages guilty permitting alcoholic are served or consumed is con- lewd intentionally permits premises. duct if he on causes lewd act said "(4) applied performances This section shall to artistic or dramatic a theatre or a museum." Seattle ordinance No. 102843. viability 4To illustrate the of the with association female breasts sexual arousal, mores, despite changing following appeared tastes and note we 9, 1977, August B, Intelligencer, by the Seattle-Post at written Emmett § Watson: Big hydro eyeballing during attraction races—which even diverted Angels dinghy topless carrying some attention the Blue four —was onlookers, seemed, girls propelled mostly, it hot breath male — B, Intelligencer, August and from the Seattle-Post at 5: § Atlanta, Ga., requires shops An to draw their blinds when being changed. on female window cloth[e]s dummies Understand passed of a as a result few traffic accidents. legislative light When the intent is viewed obvi public morals purpose protect ous the ordinance —to privacy concern for the of intimate functions— its us, undoubtedly told trial knowledge common tells there is a real difference between sexes judge, breasts, to the reasonably pres related respect bod decorum morals. Governmental ervation society. laws to maintain a decent right ies have a to enact Slaton, L. Theatre I v. 413 U.S. Ed. 2d Paris Adult Marshall, (1973); 83 Wn.2d S. Ct. Seattle (1974). 665, 670, 521 P.2d 693 concepts morality and propriety

We told that are public exposure that of the female changing, be offensive. This becoming increasingly breasts is less case, given no evidence to though support the even we are instance, assertion, and it obvious that this some the is true, reasonably If it can it is then persons were offended. will make it impera demand soon expected public that Suffice repealed. ordinance be portion tive that this the and neces argument attacks the wisdom say it to that the the ordinance, the courts lack of the matters which sity authority to decide. constitutional United States Supreme Court the Ed. S. 464, 466, 93 L. Cleary, U.S. Goesaert (1948), Ct. 198 said: to reflect require legislatures does not

The Constitution standards, any shifting more or social sociological insight, than it keep the latest scien- them abreast requires tific standards. one sought here is privilege perceive

We cannot appellants. of the any involves serious interest rights expression, religion, within their does not fall action, association, right or their political petition, (as in marital, familial, educational or within privacy, economic Gould, occupational, property, supra), Darrin v. right not shown that of theirs. It is or social interest to. enjoy. wish demand or even generally which women one hand, public, including right On the

X women, to enact laws which tend to preserve public (without peace and decorum interfering at the same time liberties) protected seriously the exercise of would be equal rights curtailed were we to hold that amendment forbids such laws as the ordinance we have before us. To do validity so would objections lend to the oppo- voiced amendment, nents of weaken confidence its beneficence. law leading pertaining pro review article

posed federal recognizes amendment is not intended designed upon strike down laws which are based Brown, Emerson, the sexes. See actual differences Falk Rights The Equal Freedman, & Amendment: A Constitu Women, tional Rights Basis Equal 80 Yale L.J. for Records of the of Repre United States House sentatives and the Washington State Senate reveal See understanding. same Representatives House of Report 92-359, No. 92nd 1st Cong., Sess. and Senate Jour nal, 42d Legislature (1972), at 345-46. The Yale Law Review writers also make clear their understanding provision substantial designed protect rights women. We that understanding share of its purpose and see no it good by reason to subvert using article 31 as a vehicle to thwart will on matters which the deem people to be only their best interest and which require inconse quential individual, sacrifices from the where there sexes, actual difference between the to which the law rea sonably relates. being

There such a of difference between the breasts (however eye males and females to undiscernible the naked some), of and having that difference a relation- reasonable serves, to ship legitimate it legislative purpose which deny the ordinance not equality rights impose does of unequal responsibilities on to men applies women. alike women, requiring both to cover those of their parts bodies which intimately procreation are associated with the function. We find that not question the ordinance does Const, art. violate 31. theory that is advanced this ordinance denies have

equal protection appellants. laws We already classify discriminate shown that the law does not on the basis sex. Hutt, Hanson 83 Wn.2d 517 P.2d 599 unemployment

we held that statute which denied benefits discriminatory pregnant women constituted classifica- tion on sex and not on actual difference between the based to be and there- suspect sexes. We found the classification test, scrutiny Applying fore to the strict test. subject purpose question we found that the law —which able only willing was to to those provide benefits not require pregnant work —did denial of benefits not women, women disabled. pregnant generally since by this Since no state interest was served classi- compelling fication, protection was clauses equal invalid under federal state constitutions. finding on the the sex

That decision based (the ability pregnant) involved to become ual difference interest to be relationship bore to the state no substantial (the persons benefits unemployment served denial (the work). Here, differences sexual unable to the sexual not the commonly arousal associated the female —but breasts) relationship legislative to the bear direct male — public decency and order. purpose preservation —the Furthermore, involved in Hanson unlike the statute Hutt, prevent exposure supra, the ordinance here does only. requires the draping one It is true that sex male, only body but more of the female than parts intimately body parts more of the female because there are function. The fact that procreative with the associated does not render it dis takes of this fact account clothing requirements criminatory. slight difference two, necessary legislative if the imposed upon the sexes is to be served. purpose due the ordinance offends the

It is next suggested United clause of the fourteenth amendment process Two cases are it is overbroad. States Constitution because

593 in support cited of this In theory. Cleveland Bd. Educ. v. LaFleur Bd., and Cohen County School 414 Chesterfield (1974), U.S. L. Ed. 2d Ct. S. the United Supreme States Court struck down school board regulations which dictated mandatory maternity leave several months before the end of a pregnancy. teacher's Citing prece- its dents which had held that freedom of personal choice marriage matters of and family life is of the one liberties protected by the process due of the clause Fourteenth Amendment, rule, the court found that which was applied regardless of an individual teacher's physical ability date, continue teaching after termination unneces- sarily dampened the exercise liberty by of that discouraging decisions bear children. Wilson, Gooding 405 U.S. L. Ed. Ct.

S. the remaining case upon, relied a statute forbidding therein, certain kinds of speech described was struck down because it could applied to constitutionally protected speech. The defendant was allowed to challenge the constitutionality statute, even own though his speech words," "fighting characterized as for which he could not claim First and Fourteenth protec- Amendment tion.

It will be seen that the first of these cases involved the plaintiffs' personal matters, choice in family protected liberty. The second was concerned with a regulating law speech, protected liberty. likewise a protected liberty

No right of the appellants is asserted case, in this and the law purport does not regulate such a liberty right. The trial finding court's that the appellants were not engaged any expressive or communicative activity questioned. has not They been were admittedly sunbathing swimming public park. The right expose body to the sun in public yet has not rec- been as a ognized right people so fundamental must have to protect adopted meant it when their constitu- legislative body exempt tions. The took care to from its provisions those performances artistic theatrical 594 of constitutional conceivably involve the exercise

might freedoms. situations, five appellants propose hypothetical be of doubtful might which the ordinance

in some of these involves is not claimed that application.5 A is not right. criminal law of a constitutional the exercise application that its by the fact rendered unconstitutional cases, long gen in as exceptional be uncertain is made which is directed of conduct against eral area Co., Sherman, v. Inc. 266 U.S. Provision Hygrade plain. 402, (1925); 21 Am. Jur. 2d 141 L. 45 S. Ct. 69 Ed. (1965). Law Criminal 100 at § in one to the law upon apply Should a court be called situations, by princi- guided it would be hypothesized enable should ples statutory construction falls particular exposure whether correctly decide are: examples Two prohibition of the ordinance. within the in (1) '"animating obliged to read a statute Courts are Dixon, v. State Wn.2d 78 usage'". well-defined context of from Beauharnais 796, 805, quoting P.2d 931 479 Illinois, 919, 72 S. Ct. 725 250, 253, L. Ed. 96 343 U.S. (2) strictly (1952). be construed should Criminal statutes Bell, State v. Wn.2d the defendant. favor of any ambi- should resolve These two alone P.2d 696 should a and "female breasts" "exposure" word guity case arise. doubtful 5 "(1) publicly baby; her A nurses woman " cut-offs; (2) wearing only 10-year-old girl through park A runs " bikini, (3) very supermarket wearing A a a scant woman strolls in does, however, nipples; cover her "(4) very goes is con fashionable dress which A the theatre a woman way tranggsaant bodice and cut such a material structed entirely; angles one can her breasts some see reagoves beach, "(5) passing bathing on waves at her suit A woman portions body, boats, and sun slowly applies of her lotion to the frontal fentan People apart. Held: No conduct. lewd with her knees inches bathes 1973)." (N.Y. Appel Gilbert, Crim. Ct. N.Y.S.2d 743 72 Misc. brief, 21.

lants at theory further, Pursuing their the appel- overbreadth urge lants this ordinance applied deny could be constitutionally protected They hypothesize liberties. a sit- uation which female in some kind of exposed breasts are arboretum, production theatrical in the and declare that the ordinance is so broad such would for- situation, In such they say, bidden. the ordinance would infringe upon constitutionally protected right of free expression, exists, and because that possibility it must be struck down.

There is cited no authority support the appellants' claim a to right a in present production theatrical arboretum, arboretum. belongs The which in part to the part of Seattle in University to the of Washington, is maintained agreement two between those bodies as an arboretum and garden, botanical to public which the is freely for admitted the purpose display enjoying trees plants which statute, are grown By there. that portion of the arboretum belongs university which to the to be used for arboretum and garden botanical purposes only. RCW 28B.20.350. If any provision, by there is city ordinance, regulation, otherwise, agreement, per- which mits the presentation of theatrical in productions very this specialized park, it has not been called to our attention and we have been to it. unable uncover only place suggested by appellants (not within coming ordinary a definition of "theatre" or "museum") in they might a right expose have to their in an expressive breasts or communicative perfor- is the public mance authority street. The which they cite States, the assertion of right this is Schacht United 398 U.S. L. Ed. 2d Ct. 90 S. that case, the petitioner had worn parts a mili- United States tary skit, uniform performing while in a in featured anti-war demonstration and in designed to create the audi- ence an understanding of and opposition to United States participation in the Vietnam war. The in issue the case was mak- petitioner had violated a federal statute

whether military uniform without an offense to wear ing in which authority. Supreme Court found that the skit petitioner performed production” was a "theatrical the wear- meaning permitted within the a statute if did portrayal of the uniform in such ing productions While the court took not discredit the armed forces. need not productions account of the fact that theatrical on area always in or even a defined performed buildings be it the such a conventional it did not have before stage, as question whether the demonstrators had a constitutional in the street. stage production a theatrical right the demonstration was not the case that suggested right did have unlawful or that demonstrators of it. perform part the skit as a case, statutory question on a turning That as does interpretation, hardly proposition top- for the stands pre- can terpsichorean performances less theatrical street, right. of constitutional sented a matter they only Not have the failed establish appellants or in their the arboretum right expose have a breasts they production, but have offered the streets a theatrical authority proposition right for the have no other than those public places such activities engage word "theatre" under the act. The exempted expressly Third Interna- See Webster's one of narrow meaning. not 2d Amusements (1968); Am. Dictionary tional 4 Jur. 2369 states that and Exhibitions § encyclopedia 2 Greek, for word, literally place "a see- means the the kinds. are playhouses, of various There Theatres are ing." theatres, theatres, houses, drive-in picture motion opera theatres, air theatres, open and even puppet ballet Wood- may notice that Seattle's judicial theatres. We take makes the ordinance such a theatre. Thus land Park has in appropriate places. expression for nude ample allowance such permit to required not shown that We are streets, places. parks, in expression its in Supreme Those United cases States has given opinion upon right expose Court its to constitutionally female breasts as an pro incident to the tected expression gone of ideas have so as to coun far may notion that in exposure tenance the such be made public place which a defendant chooses. Rather have expressly or tacitly acknowledged either that such subject to reasonable regulation, even when is done as an incident to which is expression protected by First Amendment. LaRue, 109, 117-18,

In L. 409 U.S. Ed. California (1972), Ct. Supreme S. the United States Court liquor sustained California regulations forbade explicitly sexual in places entertainment where intoxicating beverages Rehnquist, were sold. Mr. speaking Justice court, majority recognizing after the principle that an actor a theatrical production is entitled to the right constitutional speech, freedom of said: But as the of expression mode moves from printed page the commission of public may acts that them statutes, penal selves violate valid scope of permissi ble state regulations significantly increases. States proscribe sometimes expression directed accomplishment of an end that the State has declared illegal consists, be duct" or when such expression of "con part, "action," [citing States cases]. [United v.] O'Brien, supra U.S. 20 L. Ed. 2d S. 88 Ct. [391 (1968)], suggested the Court the extent which depended protected by "conduct" was the First Amendment element,"

on the presence a "communicative and stated:

"We cannot lim- accept apparently view that variety of itless ever conduct can be 'speech' labeled when- person engaging the conduct intends U.S., thereby express an idea." 391 at 376.

This court applied principle Hinkley, this Seattle v. Wn.2d 517 P.2d 592 we upheld where an ordi- regulating bars, nance employees the dress female the face contention that the ordinance curtailed the right speech. women's free LaRue, v. was written supra, in opinion

The California from case was used Mr. Dictum by Rehnquist. Justice subsequent in a writing opinion in by justice the same prohibiting that an ordinance case to a conclusion support uncov- any place in with appearing female to a claim unconstitutional breasts was vulnerable ered Inn, Inc., 45 L. v. 422 U.S. overbreadth. Doran Salem relevant, case, while Ed. 2d 95 Ct. 2561 This S. the parties. cited no made allow- consideration there The ordinance under reason, For this performances. at all for ance artistic find The court did not Supreme found it overbroad. Court designate to necessary it define circumstances to con- would be entitled which breast places to adopt it sufficient deeming protection, stitutional performance that a court's suggestion federal district theatre) would come (presumably "Ballet Africains" within its ambit. of the issue overbreadth opinion's brief discussion however,

does, on Its con- light question. throw some LaRue, v. upon is based the dictum clusion California author the court had where the same noted that supra, pictures productions and theatrical held that both motion Fourteenth of the First and within protection room perform- the bar writer contrasted Amendments. statute the California validly forbidden under ances a theatre. scantily troupe clad ballet performance by a Doran the ordinance distinguish And when he came to Inc., Inn, ground Salem did so on the he supra, but liquor, which serve applied merely places "not many If the two cases are as well." establishments read together, cited along with the cases California LaRue, supra, inescapable that when the the conclusion is court spoken nudity has protection constitutional semi-nudity as a reference expression, means of has had performances artistic in a of some kind. theatre hardly It is meant suggest, conceivable that the court Inn, Inc., in 933, Doran v. Salem supra per at that such may given formances be as a of of right matter all the public places which the district court had noted were cov ordinance, ered paragraph quoted the the Supreme opinion. Court's court had The district said:

"The only local ordinance here prohibits attacked topless dancing from bars but also female prohibits appearing 'any public place' uncovered breasts. is no limit of There to the interpretation theater, 'any term hall, public place.' could include the town house, opera place, as well as a market street public any place Thus, or assembly, of indoors outdoors. this prohibit ordinance would of performance the "Ballet Africains' and number of unquestionable other works of socially artistic and redeeming significance." F. 364 at Supp., 483.

By its own precedents, the Supreme Court had rec- often ognized the right cities and to regulate states offensive in public conduct places, though even it involves expressive activity or speech.

In Groyned Rockford, 104, L. 222, 408 U.S. Ed. 2d 33 (1972), 92 S. Ct. 2294 high upheld court an anti-noise ordinance, against a contention that its terms broad were enough prohibit protected constitutionally speech, noting that the only speech which it prohibit would was disruptive. Citing Tinker Des Moines Independent Dist., Community School 21 L. Ed. U.S. (1969),

S. Ct. 733 the court said that public sidewalk adjacent a schoolhouse not be declared off limits for expressive activity; but in expressive each case activity may prohibited materially be if classwork or disrupts involves substantial disorder invasion of the rights others. v. Mosley, Police Dep't 408 U.S. L. Ed. 2d Ct. Court, S. the Supreme holding while particular picketing ordinance involved made impermissible peaceful picketing distinctions between labor and picketing, continually said court had "time, place regu- that reasonable and

recognized manner" necessary of picketing may significant lations to further Grayned And in governmental interests. the court said that place pattern nature of a of its normal activi- ties, time, place, dictate the regulations kinds manner that are reasonable. prohibited certain speech picketing

If can be do not fit places and because because their nature places, of those pattern into the normal activities all be con- nudity expression the more so as a means of can places appropriate which are for such exhibitions. fined or dramatic body as a means artistic Exposure expression only constitutionally protected is the Balancing right has to us. this suggested been order expression City's maintain against right expres- decency, us as not unreasonable that strikes way body public should be restricted by exposure sion customarily for buildings per- to used artistic We only consenting audiences attend. formances and where in Doran meant Supreme suggest do not think the Court nude city prohibit will not a permit that the constitution streets, public places parks, its performances than theatres. allowance makes specifically ordinance here

Since establishments, it is appropriate performances artistic to strike the court criticism which caused open Inn, Inc., supra. Salem down in Doran v. the ordinance Jacksonville, 422 Erznoznik upon, Another relied case (1975), in 205, 125, fact Ct. 2268 U.S. L. Ed. 2d 95 S. 45 case, a In that supports validity of the ordinance here. city motion any pic- showing ordinance prohibiting the ture film was theatre nudity in a drive-in depicting declared city invalid. pro- that was conceded hibition constitutionally pro- was broad enough to include any tected films. It film argued was that nevertheless containing nudity, from could viewed suppressible as a place, court denied this nuisance. The contention, holding that the discriminated

001 content, against solely movies on the basis as a result of which drive-in theatres were discouraged showing from movies containing nudity, however or even innocent educational. The holding plain footnote makes it court did not ruling intend its apply to ordi- nances prohibiting public nudity. said, court page at 211 n.7: movie, nudity Scenes of like pictures per of nude book,

sons must be considered as a part the whole work. 15, See Miller v. California, 413 U. S. L. Ed. [37 419, S. (1973); Wisconsin, 93 Ct. Kois v. U. 2607] (1972). S. L. Ed. 2d 92 S. Ct. In this [33 2245] respect such nudity is distinguishable the kind of public nudity traditionally subject to indecent-exposure laws. See Roth v. States, United U. L. S. [1 (1957) Ed. 2d Ct. J., S. (Douglas, dissent 1304] ("No ing) one would suggest First Amendment permits nudity in public places"). Cf. United States O'Brien, 391 U. S. 367 L. Ed. 2d 88 S. Ct. [20 1673] Not only did the court expressly distinguish indecent laws, but the case with a dealt restriction on the showing pictures, motion a medium of First Amendment expression, Inn, Inc., a theatre. Doran Like v. Salem supra, not support does the contention that the ordi- nance here is overbroad.

The appellants many cite cases which have held that a statute or ordinance which chills the exercise of a constitu- tional right, or can be applied to a constitutionally pro- activity, tected is invalid.

All of the cited cases involved statutes or ordinances regulated which enjoy activities which First or Fourteenth protection.6 Amendment In most of person these cases the challenging constitutionality of the enactment was one 6Speech: Chicago, Terminiello v. 1, 1131, 337 U.S. L. Ed. 93 69 Ct. S. 894 Wilson, (1949); Joseph Burstyn, 1098, Inc. v. 495, L. 343 U.S. 96 Ed. 72 S. Ct. 777 States, (1952); Roth v. United 476, 1498, 354 U.S. 1 L. 2d Ed. 77 S. Ct. 1304 Louisiana, (1957); 536, Cox v. 471, (1965); 379 U.S. 13 L. Ed. 2d 85 S. Ct. 453 York, Redrup 767, v. New 515, (1967); 386 U.S. 18 L. Ed. 2d S. 87 Ct. 1414 Maryland, 564, Bachellar v. 570, (1970); 397 U.S. 25 L. Ed. 2d S. 90 Ct. 1312

602

who was right himself that his claiming constitutional was However, Wilson, 518, infringed. Gooding v. 405 U.S. 31 408, L. (1972), Ed. 2d v. 92 S. Ct. 1103 New Lewis Orleans, 130, 214, 415 U.S. L. Ed. 2d 39 94 S. Ct. 970 (1974), 2, Columbus, Plummer v. 414 L. Ed. U.S. 38 (1973), Court 3, Supreme States Ct. 17 the United 2d 94 S. could be chal speech certain prohibiting held that laws conduct defendants, their own though even lenged by the laws language not because the protected, was as well constitutionally protected speech covered question could, It is at once properly, punished. which speech concerned court in cases was apparent these pro speech, expressly directly pertained laws which Rockford, supra; v. activity. Grayned also See tected cf. Inn, Inc., supra. Doran v. Salem 44, (1970); States, 58, L. S. Ct. 1555 v. 398 U.S. 26 Ed. 90 Schacht United Wilson, (1972); 518, 408, Gooding v.. L. Ct. 1103 Miller v. 405 U.S. 31 Ed. 2d 92 S. Indiana, 15, 419, (1973); California, v. Hess 413 L. Ed. 2d S. Ct. 2607 U.S. 37 93 County 105, 303, (1973); Cohen v. L. Ed. 2d 94 Ct. 326 414 U.S. 38 S. Chesterfield (1974); Bd., 632, 52, Lewis v. New L. Ct. 791 School 414 39 Ed. 2d 94 S. U.S. Orleans, 130, 214, (1974); Georgia, v. L. Ct. 970 Jenkins 415 U.S. 39 Ed. 2d 94 S. Jacksonville, 153, 642, (1974); v. L. Erznoznik 418 U.S. 41 Ed. 2d 94 S. Ct. 2750 205, 125, (1975); Expression Political L. Ed. 2d 95 S. Ct. 2268 422 U.S. 45 405, Button, 415, Ct. v. L. Ed. 2d S. 328 Association: NAACP 371 U.S. 9 83 (1965); 479,14 22, (1963); Pfister, L. Ed. 2d 85 S. Ct. 1116 Dombrowski v. 380 U.S. Cincinnati, 611, 214, Assembly: L. Ed. 2d 91 S. Ct. 1686 v. 402 U.S. Coates Bullitt, Louisiana, Baggett (1971); supra; Speech v. and Association: Cox (1964). 360, 377, 12 L. Ed. 2d 84 S. Ct. 1316 U.S. Inn, beyond prior holdings Supreme in Doran v. Salem its Court went Inc., granting standing to L. Ed. 2d 95 S. Ct. 2561 U.S. involved, not parties rights the ordinance did not since whose constitutional were only rights. regulate speech, purport case or other First Amendment standing Grayned grant support was of its which Court cited involved Rockford, That case L. Ed. 2d 92 S. Ct. 408 U.S. adjacent prohibited person grounds to a on an anti-noise ordinance willfully making building that disturbed a noise or diversion school ordinance, peace good school session. The order of the tended disturb the speech, upheld. although regulated Inc., Inn, supra, Unfortunately, did not take note in Doran v. Salem the Court speech pro- regulate purport .or other not ordinance did of the fact that the challenge by conduct, previously allowed that those cases had tected regulations protected of that person involved whose own conduct was depar- reading opinion, one whether the cannot ascertain nature'. From a practice or inadvertent. was intentional ture from the normal The not Seattle ordinance does purport regulate speech, but regulates rather conduct. That such conduct context, in a might, given found to so be connected expression of ideas as to be included within the consti tutional protection, does not convert ordinance one regulating regulating speech. conduct to one None of by authorities cited appellants go so far as would have the court The go Supreme this case. Court expressly recognizes that there is a difference between stat utes conduct regulating and those regulating speech and O'Brien, in United said, States 367, 376, has 391 U.S. L. Ed. 2d 88 Ct. S. that not form every conduct must be treated as protected speech, "speech" and "nonspeech" elements are combined [w]hen conduct, the same course of sufficiently a important

governmental interest regulating nonspeech ele- ment justify can incidental on limitations First Amend- ment freedoms.

Since here question manifestly is directed conduct at and does purport not to regulate the expression ideas, and indeed expressly makes allowance for the prohibited conduct in a context of such expression, and in any showing any absence that person has a right to present production theatrical involving breast exposure museum, outside threatre or we must reject appellants' contentions this that ordinance pro- constitutionally hibits protected speech.

The appellants next argue that the conduct prohibited obscene, here was not word that has been defined Court, Supreme United States and cite a number of cases which have held that the expression of ideas for- cannot be on ground offensive, bidden the material unless it is in fact obscene. Since there no contention here the appellants engaged were kind of communicative activity, or expressive these no application. cases have appellants further their conduct argue lewd, within the meaning common-law of that word. legislative body included the "intentional of "lewd conduct." The within its definition female breasts" word, giving define legislature rule is that the general 1A C. ordinary meaning. meaning it a than its broader (4th Construction Statutory Statutes and Sands, 20.08 § (1974). 2d Statutes 224 1972); Am. 73 Jur. ed. § Among many rule times. recognized this We have State, v. Forest Prods. Co. Wn.2d Publishers 81 cases are Bd., Nursing v. State Garrison 814, (1973); 87 505 P.2d 453 Roadhs, v. and State 195, (1976); 71 P.2d 7 Wn.2d 550 (1967). 705, P.2d Wn.2d 430 586 question validity legislative of definitions See statutory interpretation. context of usually arises Statutory Construction Statutes and Sands, 1A. C. §§ Statutes Sands, (4th 1972), C. 20.08, rev. and 2A 27.02 ed. 1973). (4th Construction Statutory 47.07 ed. rev. § us, it con- before nor is ambiguity no the law There is as a Looking the ordinance any such exists. at tended that whole, adoption purposes that it is evident one ambiguity was to correct of section 12A.12.150 which read: predecessor, its characterized state of any appear to person It is unlawful for dress, any or make or in or any indecent lewd nudity, private his expose his or to person, indecent parts or view, lewd act guilty public, (Ord. 16046 view. any place exposed behavior 1907) 21; May 12.11.220.] § [§ law, statutory no having prior It will be seen that "lewd," "indecent," and "nudity," the words definition of vagueness. behavior," charge to a open "lewd acts the definiteness Obviously distinguished it was has said neces- Supreme Court which the United States Sullivan, United States 332 U.S. sary in criminal law.7 (1948). adhered We have L. Ed. 68 S. Ct. 331 Martinez, Wn.2d In State to that principle. adopted appears was in which section the ordinance this 7It is of interest that others, pertaining among clarifying to criminal express purpose, the law for the preamble reads: to ordinance 102843 conduct. The part Whereas, existing are in obso- of The Seattle criminal ordinances needs; sociological lete, incomplete duplicative, inconsistent with modern which failed P.2d we found an ordinance vagueness. "loitering" that We said there define void for requires given process fair clause that citizens be the due notice of what is forbidden. suggested

It is not that section 12A.12.150falls short requirement. Rather the contention is that the cover- age of the statute is so that it broad includes conduct which meaning does not come within the common-law the word appellants words, "lewd." would court have the require legislative body terms, to define its when enact- ing a law but at the same time restrict the definition adopt, which the court would it to enact were the statute. authority proposition, No contrary is cited for such a and we think it principle power

to the fundamental legislative define criminal offenses resides branch. 22 (1961); C.J.S. §§ 11, Criminal Law 21 Am. Jur. 2d legislature Criminal Law 14§ Where the has supersedes offense, defined an its definition the common (1927). Benson, 170, law. State v. 144 Wash. 257 P. 236 legislative body may The fact that the conceiv ably characterizing have been somewhat harsh the con proscribe duct which it saw fit to as lewd rather than merely indecent, does not erase the fact that the conduct clarity give warning itself is described with sufficient to fair description of what is forbidden. That is the which due process requires. Galbreath, State 69 Wn.2d P.2d 800 legislative arbitrary course,

Of a definition be so operates deny rights it to constitutional or otherwise run prohibitions. Supreme afoul of constitutional As the Court Whereas, necessary provide modem, fair, understandable, it compre- is to a code; hensive and effective criminal and Whereas, regulatory it is desirable to remove certain from the measures field municipal distinguish of criminal law and to between crimes and non-criminal law; municipal violations of Whereas, County has, Seattle-King pursuant agree- Bar Association to an City ment with the of Seattle authorized in Ordinance a completed revision criminal code and the Seattle Council has considered said being fully revision and . . . advised Inc. Interchange, in United of Errors of Connecticut said (1957), A.2d 144 Conn. the rule does Spellacy, court, constitutionality a a statute prevent when the attacked, logi- to it examining the act see whether cally fairly which to define. purports describes that included, within the definition of legislative body There the business," publishing paper "real the business estate order to sub- specialized advertising, which real estate legitimately imposed ject requirements were no but bore reason- upon real brokers and salesmen estate court held publishing to the business. The able relation such onerous and irrational attempt impose violated the constitu- legitimate business upon burdens process equal protection of due requirements tional the laws. Isaacs, Serv., Ill. Inc. v. Central Television (1963), of televi legislative classification

189 N.E.2d 333 parts," purpose for the repairmen sion as "retailers activities, which tax their imposing upon a retail sales tax held upon generally, was imposed repairmen was not taxes requirement unconstitutional as violative which it upon operates. uniform as the class be cases, down the courts struck It will seen that these be imposition resulted legislative definitions imposed been the activi- which could not have had burdens have, dictum, correctly defined. We question ties in been Zornes, involved, in State v. note principle taken 9, 20, we said: 475 P.2d 109 where Wn.2d contrary declaration legislative doubtful whether a constitutional, if can sustained as all the evidence under equal treatment deny to a defendant its effect is the law. City was without no the suggestion here that

There is were of which the appellants to the conduct power punish lewd, that, the council defining or it as guilty, found could not punishment it a upon to attempted impose prescribed. otherwise have been People case, Smith,

In another Mich. legislature passed which, N.W. 402 had an act according designed punish title, to its was to define pandering. challenge waged crime of A statute was ground upon the that the title too narrow to include all proscribed of the conduct in the act. The court found that pandering meaning, the word was one of within the narrow understanding. Therefore, held, common was not title requirement to meet sufficient the constitutional that the subject matter of a bill be embraced within it. principle application involved no that case has Const, applies only legislature, 2, 19, §

here. to the art. it is not contended otherwise. event, the conduct described Seattle ordi- ordinary meaning

nance within of the word "lewd." necessarily subjective The word invites evaluation. What to person may entirely one be lewd tobe another inno- appears legislative cent. That to be the reason that body judicial here did fit see to leave definition the conduct forbidden. Dictionary

Webster's Third New International (1966) gives following definition: sexually : unchaste or licentious: Dissolute, Lascivious suggestive tending inciting

:b of or to moral : looseness imagination to sensual desire : Indecent, Obscene, (moralists upon looked a lewd distrac- Salacious Mumford) (loud, tion—Lewis lewd dissonances from the (the .. . orchestra hawk stood . . . pit Time) — purple tongue lolling open with his lewd from his beak— O'Flaherty) Liam Among "suggestive tending the definitions of or ihciting imagination." moral to sensual desire looseness— appellants' descrip- conduct can be fitted into these though many persons, including tions, judges, even some might suggestive inciting. find their conduct neither nor say enough legislative body that the Seattle determined that a sufficient number of citizens lewd, would find female breasts 008 word, its pro-

within the to warrant broad definition the morals, preservation public peace of the hibition the order. good necessity with the construing are not the We faced the word "lewd." legislative body intent of the when used by cited Accordingly, defined the word for us. cases has upon the which courts have been called appellants, the word legislative respect the with interpret intent statutory not determi- provided, no definition where cases, the law naturally give In such the courts native. accused, the a strict construction favor of question compliance the established doctrine. statutes appellants interpreting which the cite

Cases it are therefore defining the word "lewd" without use Smith, In re 807, 362, P.2d 102 not in 7 Cal. 3d 497 point. Procunier, (1972), Wainwright v. F.2d 446 Cal. Rptr. 335 Giannini, (9th 563, and In re 1971), Cal. 2d 446 Cir. 69 all involved the inter Rptr. P.2d 72 Cal. punished of California Code pretation Penal § Gilbert, Misc. 2d exposure." People "wilful and lewd (N.Y. 1972), Crim. Ct. also N.Y.S.2d 457 "wilfully any who punishing person a statute involved statutes, his the exposes person ..." Unlike those lewdly under does make consideration here Seattle Rather, separate of the offense. lewdness a element female the one's exposure as lewd intentional defines in public. breasts sequel relevance fact that the

Of here greater Gilbert, case, People 72 Misc. York New (N.Y. 1973), judge City Crim. Ct. same N.Y.S.2d 743 was an "exposure offense of of the female" held that within lewd- greater "public offense offense included upon this conviction ness" and sustained defendant's her entire exposed The defendant that case had count. gestures not made lewd on a beach but had body defined "Exposure of the female" as or movements. of female exposure was the intentional New York law laws, for- breasts. As the court construed these two breasts, did exposure bade the mere of female but not for- exposure bid of either male or genitals female unless gestures lewd accompanied by move- ments. Recognizing interpreta- the anomalous result his tion, judge suggested legislature might see fit to correct it.

The New York court also held that forbidding law "exposure constitutional, of the female" was con- against tentions that process equal denied due and protection.

It suggested that since the of female breasts is not so an serious offense in prohibited as others this sec- tion, the council acted arbitrarily when classed these together. offenses of view fact that RCW 35.22.280(36), authorizing the city make regulations all necessary for preservation of public morality, health, peace, good limits, within provides order its the same punishment for all of regulations, violations such we cannot in theory. statute, see merit this Pursuant to this Seattle, of in ordinance, section of 12A.01.090 conduct, violations, covers all criminal as well as other has provided that offenses a criminal nature pun- shall be by ished a fine imprisonment $500 more than and/or city in jail for not more than 6 months. Thus all such class, offenses are of though they the same range seri- disorderly ousness conduct to assault.

The seriousness the offense is considered the trial judge imposing sentence within the legis- confines of the lative prescription. imposition The of fines of only $100 proper lower court's reflects exercise discretion evaluating the seriousness of the charged offenses here.

Finding ordinance, no constitutional flaw in the and the admitted, being violations we affirm judgment.

Wright, C.J., Hamilton, Stafford, Hicks, JJ., concur. in the majority concur

Wright, (concurring) C.J. —I however, do, I opinion signed the same. wish and have Utter aspect comment on one of this matter. Mr. Justice I fully to the use of the word "lewd". his dissent referred him in that it will agree with this word is unfortunate ill Cer- young stigma. brand women deserved these per- will minds of tainly bring the use of that word to the something far learning sons of the conviction visions actually happened. different from what authority to forbid body had clear legislative had legislative body litigation. conduct involved this in its enactment. authority to the words used clear define Revenue, Department Co. v. John H. Sellen Constr. (1976). Wn.2d P.2d unfortunate, of the word "lewd" is While the use is not enactment. legislative to the wisdom a relates upon legislative the wisdom judicial pass function (1892); v. Treffry Wash. 424 Carey, State enactments. rel. (1965); State ex Wn.2d 408 P.2d 269 Taylor, 67 Parmenter, P. 1047 50 Wash. Wolfe No. involved problem Another seems question In is no the Seattle 12A.12.150. this case there ordinance, however, does place. a The public Arboretum is a place place "in at contain language the by could observed such act circumstances where under predict It not difficult to public." of is any member the come under may quoted language at future time the some the same. standing challenge to by party with question Wright, Hicks, J., C.J. with concurs majority. with agree cannot the Utter, (dissenting) J. —I in application no have the It rules which applies general the cases in and misconstrues of this case context the facts presented The facts its conclusions. supporting cites interpreta- any reasonable a crime under do constitute City The of Seattle has in question. the ordinance tion of nudity. prohibiting public an ordinance power the to enact power, through however, It must its an exercise ordinance arbitrarily exaggerate which does not discriminate or the severity in of the crime. It is not the definition found the dictionary case, of which in "lewdness" controls this but City's equating public exposure breasts, act of rather of requiring response without intent excite a sexual naturally appeal the beholder or which conduct would prurient interests, the viewer's such other subsections public fondling geni- of the which forbid tals, masturbation, and sexual intercourse.

If stand, the convictions these students are allowed to young carry throughout these women will with them their yet, everyone conduct, lives record of conviction for lewd arbitrary that, concerned concedes but for the definition adopted that crime which seems to have been appellants Seattle, the neither acted nor intended to act in a "lewd" manner as that term used in reference specified. impli- other acts record, Such a criminal and the disposition vulgarity cation of a to commit acts extreme necessarily accompanies may appellants it, do these years. incalculable harm future majority's Interchange, use cases United (1957) Spellacy, Inc. v. Conn. 136 A.2d Serv., Isaacs, Central Television Inc. v. Ill. support position particularly

N.E.2d 333 its inappropriate. suggests support proposi these cases legislative tion that courts strike down definitions imposition result of burdens which could not imposed by legislative body have been had activities question correctly appel been defined. conduct prohibited correctly lants categorized this case could have if been directly and the Central Television case is support proposition. leg Television, of that Central occupation islature had defined "retailer" include upon persons A television servicemen. tax was levied all engaging occupation in "retailer." Television service challenged classifying persons engaged men the law them as that occupation Everyone in the conceded tele- retailer. occupational be to an subjected vision servicemen could tax, they were but the servicemen contended that because to subjected occupa- could not be that not retailers stated, plain- tax. court "The contends tional As the State in engaged occupation plaintiffs tiffs taxable —and occupation to be not under an concede their taxable —but Central sales." taxing engaging act the business of retail Serv., Isaacs, v. supra Inc. at 427. Television not The court held that the television servicemen could Occupation because be taxed under the "Retailers' Tax" arbitrary capricious definition of and "retailer" The court also stated that its inclusion the servicemen. convert attempt is an impermissible legislature for definition activity by adopting it is not something into of television occupation which is Just as the unreasonable. case in an amount iden- could be taxed serviceman retailers, women their exposing applied tical if that act is equally convicted breasts be However, under the television servicemen properly defined. taxed as retailers Television case could Central within that including definition servicemen because the arbitrary unreasonable. found to be classification was in public their breasts cannot be Similarly, exposing women including the definition of lewd conduct because convicted conduct within the lewd of breasts classification an unreasonable classification. arbitrary is definition support fact direct majority case cited Interchange Similarly, I the United position take. activity for- regulation the court indicates some case primary undertaken and bidden could have been attempt rather than the method definition vice was the position of the well regulate. supports That case as dissent, majority. not the Gilbert, 72 Misc. People use of majority's 1972) (N.Y. People Crim. Ct. City N.Y.S.2d 457 (N.Y.

Gilbert, Crim. Misc. 2d 339 N.Y.S.2d case, In the second 1973), inappropriate. particularly Ct. g^3 "exposure of the defendant was convicted of the offense female", any separate way part crime not a of the on court of a exposure statute lewdness. The held that public female is a lesser included offense of lewdness. so held had to prove exposure because to a female the state every public except element of lewdness the central prove statute, and fundamental of the lewdness requirement conduct must lewd. The defendant was that had case acquitted been lewdness the first prosecution because the had failed to the defendant's prove exposure had been lewd.

At nudity, least two courts have held that mere public more, without provide cannot the basis for a lewd conduct Smith, 807, conviction. re 7 Cal. 3d 497 P.2d 102 (1972), Cal. Rptr. expressly 335 holds that a defendant who simply nude, sunbathed the absence of additional conduct intentionally attention to directing genitals his for sexual purposes, lewdly expose did not Similarly, himself. in McKinley State, 434, 436, was held v. 33 Okla. Crim. 244 P. elderly 208 that an man who wandered about his naked, home full neighbors, view his was not guilty lewdly exposing person, his the court lewd holding exposure "imports negligent disregard more than a decent proprieties consideration due to others." While in both these instances the defendants could constitution- ally have been narrowly said have violated a more drawn ordinance, each was held I guilty to be not of lewd conduct. apply would similar principles here.

The ordinance at issue declares to be person guilty "lewd conduct" "intentionally performs any who lewd act public place" and defines "lewd act" as including, among things, genitals "an one's ..." legal lay female breasts Both the definitions of conduct" consistently require expo- "lewd more than the body. recently sure of the court the word This has held interchangeable "lewd" is with "obscene" and noted that dictionary definition of the term includes such other "lascivious", "dissolute", "salacious", v. terms as Seattle 614 (1974).

Marshall, of these Wn.2d 521 P.2d 693 Each ordinary given meaning, intended, terms is its to describe prurient conduct to arouse desire or calculated sexual excite jurisdictions adopted interests. Courts of other have similar frequently being definitions, one most set forth that the "given indulgence lust, term "lewd" means to unlawful eager indulgence Jones, ..." State Conn. sexual (1964); State, A.2d Martin v. Cir. Ct. (Okla. 1975); App. Chesebrough State, P.2d 685 Crim. (Fla. 1971). generally 255 So. See 25 Words Phrases, of this "Lewd" The uncontroverted facts length majority case, in dis forth at the are set opinions, clearly senting appellants that the are establish guilty not of conduct of lewd under these definitions. equally not as clear that their actions were as serious by such those set forth of the ordinance subsections fondling genitals, of of the acts masturbation sexual intercourse. majority recognizes, required

As the courts are to read usage'". '"animating in statute the context well-defined (1971). Dixon, 796, 805, v. State 78 Wn.2d 479 P.2d 931 narrowly in Criminal must be construed favor statutes Bell, v. Wn.2d P.2d 696 the defendant. State (1974). meaning Further, the of a criminal where overall particular offenses, the act statute indicates a association against out- inclusion offense should be construed an scope meaning State the overall the act. side Chase, Del. A.2d statutory construc- and rules of

Given these definitions city council, in I it was the intent of tion conclude enacting prohibit ordinance, this only in a lewd when such an act was done female breasts manner, is, intended excite a sexual a manner naturally appeal response in would beholder which prurient The interests. conduct to the viewer's by appellants prohibited therefore charged. they under which were Smith, asserts that cases such as In re The majority supra, State, McKinley supra, distinguishable involve statutes utilizing the word "lewd" without definition, further while the pur ordinance here at issue portedly makes simple public nudity lewd and of itself. relies, opinioh distinction, this making upon a pas sage Sands' on statutory treatise construction which legislative states a definition is binding upon the courts. however, majority, fails to take note of the sentence immediately following quoted passage upon which relies. That sentence states:

If, however, arbitrary definitions are result unreasonable uncertain, classifications or are then the court by is not bound the definition.

1A Sands, Statutes and Statutory Construction C. 20.08 § (4th 1972). ed. It is this principle construction which is applicable here. If the "exposure of the female breasts" provision is not read as requiring that the exposure take place manner, a lewd it is both arbitrary definition and an unreasonable classification in light of the other types of conduct enumerated in the ordinance and need not be considered conclusive this court.

If literally, .read the ordinance clearly prohibits many types of conduct which cannot logically be said to have been within City's interest to prohibit. See majority opinion footnote 5. lewd Reading statute as requiring a exposure eliminates all of these difficulties.

I agree with the majority's assertion City that the has the power to regulate the type of conduct engaged by these However, defendants. it must do so the context of an ordinance which is both places constitutional and the crime in a logical classification. power of the to attach any label wishes conduct which it power has the regulate must be exercised within the bounds of proper I classification. dissent. JJ., J. Dolliver, Utter,

Brachtenbach concur with 616 Utter, J., with (dissenting) agree J.

Horowitz, —I 12A.12.150(l)(a), (2), the lewd conduct ordinance section (4), as lewd the of female characterizes circum- public place, place breasts a or at a and under act member stances where such could observed public, arbitrary, in law is and violative of capricious equal protection, rendering charge the dismissal of the I mandatory. also is unconstitution- believe overbroad, Amendment, ally for violation First I agree majority, reasons with the how- discussed herein. ever, equal rights it is not under the state's invalid Const, (amendment 61). amendment. art. 31 equal rights To be a statute or ordinance violative substantially or conduct which is must address some matter regulation applied sexes. A or proscription identical both sex, then, would be dis- only to one unlawful members on crimination based sex.

When, however, or prohibited matter regulated sex, one physical peculiar relates characteristic both, See be valid. not common to the discrimination Gilbert, 125, 343, 50 L. Ed. 2d General Elec. Co. U.S. (1976). Aiello, U.S. Geduldig v. 97 S. Ct. n.20, also S. Ct. 2485 See 41 L. Ed. 2d Brown, Emerson, Freedman, Rights The Equal Falk & Equal Rights A Basis Amendment: Constitutional for Women, mat- L.J. which states the 80 Yale ter well follows: Equal legal principle underlying

The fundamental Amendment, then, with the law must deal is that Rights individuals, with classifica- attributes of particular attribute impermissible tion on the broad based however, legislation preclude does not sex. principle, This action) (or into regulates, takes other official characteristic account, physical deals or otherwise that, might be said In this situation unique to one sex. a benefit individual obtains a certain sense* to one belongs or she restriction because he subject to a wet nurses would relating sex. Thus a law women, donation of law only regulating and a cover only of this kind sperm Legislation would restrict men. not, however, deny sex. equal rights does to the other So only as the law deals characteristic found long (or some) (or some) men, no or in all women but all men women, no not ignore but tics one sex. it does individual characteris- found in both average sexes favor on based not, legislation more, such Hence does without principle Equal violate the ment. of the Amend- Rights basic Gould, in Darrin v. exception This was noted Wn.2d n.8, 540 P.2d but not In applicable. that a regulation case we held from prohibiting girls playing boys' interscholastic contact football on teams violated the equal rights regulation amendment. The was defective solely because discriminated on the of gender. basis Since boys girls capable that case were found of equal performance football, only to exclude girls play was clearly held on sex. discriminate the basis of The Seattle here, however, in question ordinance on regulates not gender, basis of but on the possession basis of of physical characteristic, women, i.e., one which is unique female breasts. is contended unique female breasts

females, that some men have breasts. For purposes this dissent, we may However, assume this is true. the number of such society men our very, is on the very whole small. In popular understanding, female breasts are a characteris- female, tic of the not of interpreting male. the reach equal amendment, rights we should interpret amendment a manner that meets a common under- standing. The understanding an elite group profes- sionals that group a small have such men breasts is not characteristic, the common understanding should not our guide application amendment.

While the prohibiting of female in public breasts does not the equal rights violate amend- ment, it does violate the First language Amendment. the ordinance so prohibits broad conduct which is symbolic clearly speech protected by the First Amendment. unconstitutionally It is therefore overbroad void. and legislative An if ordinance or act is overbroad its reach beyond speech subject legitimately extends or conduct to regulation constitutionally pro- prohibits suppresses or speech Robel, or States v. tected conduct. United 389 U.S. 258, 266, 508, L. 19 Ed. 2d 88 Ct. 419 The Seattle S. protected speech by suppresses prohibiting nudity performances taking place any public in dramatic place City other than or a theater museum. of Seattle ordi- Indeed, No. nance 12A.12.150. the ordinance reaches even prohibit performances any place private to further these might public. which within the of a be view member 12A.12.150(2). Nudity City of Seattle ordinance No. performances protected dramatic Amendment some is First speech, By symbolic majority limiting the concedes. severely places productions may per- be such suppresses formed, on its constitution- the ordinance face ally protected speech. to Such overbreadth is fatal validity ordinance. us production do not claim

It is true that the defendants before here engaged in or to have been a dramatic They expressive not claim conduct. do First Amendment City requirements prevent that First Amendment they prohibiting argue did their conduct. Nor do prohibit regard such With not intend validity conduct. charged; are ordinance under however, it is the defendants were irrelevant whether protected speech engaged not. The Amendment or First question the defend- is the ordinance under which whether charged clearly If valid. it is overbroad—and ants are may punish invalid, con- not be used is—it is charges against the must defendants duct whatsoever. be then dismissed. very compelling. The an outcome is

The reason for such burden on laws is an intolerable existence overbroad speech expression. Thus, even freedoms of cherished may constitutionally punished be whose conduct those challenge allowed to validity of an ordinance statute overbreadth, on the basis of ensure defective law suppress speech. will not continue to free rule Inn, Inc., in Doran v. Salem stated 45 L. U.S. (1975) (hereinafter Ed. 2d S. Ct. referred to as Doran), majority. a case cited and discussed previously

We have ordinance held that a statute or though even

may constitutionally applied the activi- defendant, of a particular ties that defendant chal- lenge it on if the basis of overbreadth so drawn as to sweep other protected speech within its ambit expression

persons Court. As we before the said Grayned City Rockford, (1972): 408 U.S. laws, ones, "Because overbroad vague privi like deter activity,

leged firmly our appellant's cases establish standing to raise an overbreadth challenge.11 Although majority opinion somewhat critical of appears rule, this it on binding is nonetheless this court under Const, supremacy clause. U.S. art. 6. The defendants here may challenge therefore the Seattle for over- breadth.

The result is not inconsistent with our own holdings. Discussing problem of an ordinance which was uncon- stitutionally court vague, this said: city that good contends and self- intentions [T]he law

restraint of unjust prosecution. save the ordinance enforcement not officers will result assurance, however,

This does not prosecutors because "well-intentioned ... do not Baggett a vague neutralize vice of law." Bullitt, 360, 373, 377 U.S. 12 L. Ed. 2d Ct. Sup. (1964). The law so should be drawn to make inapplicable obviously to cases which are not intended be included within its terms. Drew,

Seattle v. 405, 409-10, 70 Wn.2d 423 P.2d 522 (1967). This reasoning equally is to an ordinance applicable is constitutionally rights overbroad. protected Where speech expression concerned, free and is vital a if regulation precisely narrowly challenge drawn the basis of overbreadth is to be avoided. See NAACP on Button, L. Ed. 371 U.S. 83 S. Ct. 328 ordinance is it affects con- Seattle defective because stitutionally by protected performances discrimi- dramatic nudity, nating i.e., content, on basis their nudity. suppressing performances those which contain performances, place ordinance, take Those under the only in It is theaters and museums. contended this provision performances protec- expressive adequate for is disagree. may be, tion for First I It Amendment freedoms. majority argues, has as the that the of Seattle taken "exempt provisions ordinance's] from [the care to those performances might artistic and conceiv- theatrical ably Even involve the exercise constitutional freedoms." city so, it is had failed in this ordinance because council sufficiently narrowly not drawn. argued been word "theatres" is broad has production

enough place to include where a dramatic place. type protected would take the First Amendment Such definition is with the structure inconsistent goes beyond meaning ordinance, the common appropriate A for word. common definition which is use construing in Black's Law Dictio- this ordinance found (4th 1968): nary 1647 ed. Any purpose of dramatic or

Theater. operatic edifice used for the plays, performances, representations, or entrance-money received, to which admission occasionally including for concerts halls rented or used representations. theatrical 1914). (8th Dictionary ed. See also 2 Bouvier's Law 3265 by meaning, meaning the the understood This common interpretation ordinary citizen, of the control our must 44, Jones, v. York Co. Wn.2d Ins. 86 ordinance. New Life (1975). by meaning suggested 47, 541 P.2d The'broad 989 majority, hand, distinction the eradicates the on performance. This not is theatrical a theater and a between understanding "theater." is also of the word the common To include of the ordinance. inconsistent with structure

621 theater, public an open park the definition prohibition nudity would example, against contravene the at a place public where a could it. member of observe Furthermore, in the pairing of museums and theaters exception suggests buildings, clause intent not except places, productions where dramatic or cultural are events most A commonly held. consistent and construction proper ordinance, then, it prohibits per- is that dramatic containing formances nudity place outside a museum type commonly structure of a understood be a theater. majority believes such a restriction is proper. There is no showing, argue, that First expres- Amendment nudity sion containing permitted parks must be or other They places. appear the fact ignore that First replete Amendment jurisprudence United States Supreme Court decisions guaranteeing freedom of speech such public places, and denying governments right restrict or prohibit such on speech the basis its content. majority does not prohibits contend this ordinance only obscenity by pornography, protected 15, See v. California, First Amendment. Miller U.S. 413 419, L. Ed. (1973); 37 2d 93 Ct. 2607 Adult S. Paris Slaton, I 49, 54, v. Theatre L. Ed. U.S. 2d 93 S. Ct. They deny protected do not First Amendment expression regulated ordinance. We only then, quote, NLRB, need a passage Hudgens v. 507, 520, (1975): 47 L. Ed. Ct. U.S. 96 S. may For while a municipality constitutionally impose time, place, reasonable use of its on regulations and manner

streets sidewalks for First Amendment purposes, 569; see Cox v. New Hampshire, 312 U.S. Paulos New Hampshire, 345 U.S. even facilities, forbid such altogether use some of its see Florida, Adderley v. may not do 39; what a municipality 385 U.S. First under Fourteenth Amendments expression is to discriminate on the regulation expression. basis the content of that Erznoznik Jacksonville, else, "[Ajbove all the First U.S. 205. power Amendment means that has no government ideas, its message, restrict subject because of its its expression matter, Chicago v. Dept. or its content." Police of Mosley, U.S. 95. majority would of regulation discriminate con- expression performances artistic on the basis of its tent, i.e., many it of nudity, by only to a few confining public impermissible. available discrimination is fora. That opinion In this regard majority signif- misconstrues Jacksonville, v. 45 L. Ed. icance of Erznoznik U.S. (1975) (hereinafter Ct. 2268 referred to as S. Erznoznik).

In .Erznoznik the court held unconstitutional on its face of showing containing films prohibiting nudity by a drive-in is theater where screen visible City or public public place.8 from street argument may protect Jacksonville's its citizens to be offensive unwilling material rejected. municipality may A individual flatly protect privacy by regulations applicable which are reasonable Jacksonville, v. speech all of content. Erznoznik regardless selectively supra power municipality 209. The at prohibit speech kinds areas on the certain others, however, more than grounds offensive strictly limited. when only upheld been selective restrictions have Such home, see privacy intrudes on the the speaker (1970), or the S. 728 Dept., v. Post 397 U.

Rowan Office unwilling impractical makes degree captivity Lehman v. See exposure. to avoid or auditor viewer (1974)]. Heights, U.S. Shaker [418 Jacksonville, at omitted.) (Footnotes supra Erznoznik explained further: 209. The court to decide government not permit Constitution does [T]he sufficiently protected speech are otherwise types unwilling listener for the require protection offensive ordinance, nudity vis similarity of the Jacksonville the reach 8The between any ordinance, nudity visible at public place, the Seattle and that of ible from a museum) public, by member of public place (except a theater striking. normally upon . . . viewer. Rather the burden falls [his] viewer to "avoid further bombardment sensibili eyes." simply averting ties Cohen v. [his] California 15], 21. [403 at U.S. supra Jacksonville, Thus, Erznoznik at 210-11. because unwilling nudity may eyes, viewer of in films avert his performances may public parks. nude not be from banished majority argues, supports however, that Erznoznik distinguishes "public nudity its view because tradition- ally subject protected exposure to indecent laws" expression. supra Jacksonville, Erznoznik v. 211 n.7. at Nudity thing nudity as indecent is one but aas expression language form of artistic is another. The of the prohibits exposure. pro- ordinance more than indecent It nudity expression, hibits form as a of artistic which is con- stitutionally protected. For this reason the ordinance is exposure may prohibited defective. Indecent of course be by carefully ordinance, however, written laws. This not enough. sweeps may narrow It within its bounds much that lawfully prohibited. not It is overbroad. majority nudity perform- concedes that in dramatic expression protected by

ances is a form the First inescapable Amendment. This is the conclusion to be holdings Supreme drawn from the of the United States supra Inn, Inc., Court Doran v. Salem and Erznoznik v. supra. Jacksonville,

In Doran the court a held that First Amendment chal- lenge prohibiting dancing any to an nude public place likely was to succeed on form the merits. This entertainment, noted, it was be entitled to First protection Amendment under some circumstances. Doran supra quoted Inn, Inc., Salem at 932. The court approval passage opinion, a from the lower court particular protected expression a cited containing instance of artistic

nudity: prohibit performance "[T]his ordinance would 'Ballet Africains' and a number of other works unquestionable socially signifi- artistic redeeming F. Supp. cance." 364 at 483. Inn, Inc.,

Doran v. at First supra Salem 933. Amendment nudity was protection expressive performances in Erznoznik. the court emphasized case sustained First to an ordinance challenge prohibiting Amendment nudity in outdoor on screening containing films theaters suppressed. Erznoz grounds protected speech Jacksonville, supra It is clear from these nik at n.8. nudity expressive performances part cases that symbolic speech protected by the First Amendment. observed, correctly: we

The District Court believe only prohibits "The local ordinance here attacked any but female topless dancing from prohibits bars also with uncovered 'any public place' appearing interpretation breasts. is no limit to the There theater, include the 'any public place.' term could hall, house, market opera town place, as well as out assembly, indoors or place

street Thus, prohibit perfor doors. this ordinance would other mance Africains' a number of of the 'Ballet and redeeming unquestionable socially works of artistic and F. at significance.11 Supp., 483. Inn, Inc., supra

Doran Salem at 933. that, argues majority regarding The nonetheless breasts, dis- of women with naked appearance public regulating pure made ordinances tinction must be between The regulating and those conduct. Seattle speech claimed, thus, is subject it is not regulates conduct regulating is objections same Amendment one First inconsistent with the patently speech. argument This may expression, be dancing majority's recognition First Amendment notion the basic recognize fails expression 'pure speech."' can be "akin to conduct which is Dist., 503, 508, 21 L. U.S. Tinker Des Moines School words, In Ct. ideas Ed. 2d S. well as conveyed symbols as by nonspeech be thoughts may words, symbolic expressions fully protected and those may Baring of breasts by the First Amendment. exposure, be it may indecent be expression an ideas which is akin to speech. may prohibited, latter not be nor places, confined to a few because its content.

Freedom of expression truly that right would not if the exist could be ernment only exercised gov- area a benevolent provided

has as a safe haven for crackpots. Dist., Tinker v. Des Moines School supra at 513. emphasize We once it again that is irrelevant whether the defendants us in protected before here were engaged speech may or not. It be true that in question conduct here may prohibited by Seattle. The we question face, however, must is whether the ordinance under the defendants are charged is valid. Because contravenes the requirements of Amendment, the First valid. may defendants not be punished violation of an invalid ordinance. then, summary, the Seattle ordinance is unconstitu-

tionally overbroad on its face it prohibits symbolic because protected speech by the First objection Amendment —an may defendants raise here. It process also violates the due and equal protection clauses in arbitrary its and capricious characterization of the exposure of female breasts as lewd. For one these reasons the ordinance not be applied defendants and the charges should be dismissed. J., Utter, J. Horowitz, concurs with

Case Details

Case Name: City of Seattle v. Buchanan

Court Name: Washington Supreme Court

Date Published: Sep 28, 1978

Citation: 584 P.2d 918

Docket Number: 44199

Court Abbreviation: Wash.