*1 Oct. 1982.] No. 24347. [S.F. Petitioner, MORRIS, JEAN
DEBRA FOR THE SAN JOSE-MILPITAS COURT THE MUNICIPAL COUNTY, SANTA CLARA DISTRICT OF Respondent; JUDICIAL PEOPLE, In Real Interest Party THE
Counsel C. Rich and Lisa E. for
Stuart Wochos Petitioner.
No for appearance Respondent. Thibodeaux, P. District V. Attorney, Joseph
Louis Bergna, Deputy for Real Interest. Attorney, Party District
Opinion
THE COURT
I Jean seeks a writ Debra Morris of prohibition directed to the San Santa Jose-Milpitas Municipal Clara County, her barring B13-14, violation county ordinance No. prosecution prohibits hall, in any theater, nude entertainment other than a public place concert ” similar establishment “primarily devoted theatrical performances. She contends, that the ordinance is principally, overbroad and thus infringes *4 her First Amendment of freedom protection expression and similar I, afforded article sections 2 3 protection the California Although we local upheld Constitution. ordinances similar to the one at (1973) Crownover v. here in Musick Cal.3d issue 405 Cal.Rptr. 681, 497], P.2d later decisions of the United States Supreme Court in us to hold Crownover went too far compel permitting exclusion entertainment, some of all nude of which enjoys First Amendment We conclude that is protection. Morris entitled to the writ she seeks.1
II was as Petitioner a dancer at employed a Hiphugger, San Jose bar. 1978, 11, October she was arrested for On having her exposed buttocks in a violation of Santa during performance Clara Ordinance No. B13-14 (a)(3). formal her complaint A with charging violation ordinance 26, was filed on October 1978. 1979, 16,
On
February
municipal court sustained Morris’ demurrer
without leave
amend on the
that B13-14 is
grounds
unconstitutionally
However, on
vague.
petition by
county,
Superior Court
Santa
Clara
issued a
writ of
County
mandate
peremptory
ordering the municipal
court to
its order sustaining
vacate
the demurrer. The
court
superior
cited
Musick, supra,
Crownover v.
The ordinance waiter, or entertainer in estab- as a waitress any . . who acts . person food, or food beverages, beverages, including, which serves lishment . . . beverages any to alcoholic . . . or participates] not limited but or exhibition act, any place, place open public live demonstration view, and who such activity open public performs place added.) The (Italics a misdemeanor.” . guilty . ..is simulated, uncovered, than or less opaquely “nude” “the defines (3) (2) (1) or female areas genitals pubic male [f] covered: [if] [t] breast with only breast female nipple female buttocks [if] [if] covered.” The ordinance specifically exempts performances and areola theaters, and similar establishments devoted concert halls “primarily such have establishments provided “permanent- theatrical performances,” can have arranged body spectators affixed seats so ly stage.”2 view of the unobstructed *5 had Penal Clara the ordinance under attack to adopted pursuant
Santa 318.6, which cities 318.5 and or counties to permit legislate Code sections 318.5, the of nude entertainment. Section the enactment more subject case, “Nothing the states relevant in this code present part: to pertinent of, to an ordinance or be construed prohibit invalidate adoption shall or if such ordinance county city, directly ordinance a by, regulates an of or breasts any or buttocks who acts genitals person exposure waiter, waitress, ... or entertainer in an establishment which a serves to, food, but not beverages, or food and limited beverages, including, for on the such establish- premises beverages, consumption alcoholic theater, not to a of this section shall concert apply The provisions ment. [f] to hall, which is devoted theatrical establishment primarily or similar Crownover, sections 318.5 and As 318.6 explained performances.”3 unconstitutionally exception vague. the so-called theater is also contends that 2 Morris grounds unconstitutionally ordinance issue is we conclude on other Since overbroad, we do not that issue. address “Nothing in provides that: this code shall invalidate an ordinance 318.6 [t] 3 Section by, of, city a or adoption county, to an ordinance if such prohibit or be construed acts, demonstrations, any public to or exhibitions which relates live occur in open or view and involve places open public, places exposure places, any participant any or the breasts of female parts participant, or buttocks of private expressly not prohibits prohibited an act or-acts are authorized or such ordinance if code, theater, hall, apply of this shall not to a or provisions section concert by this [t] primarily performances.” devoted to theatrical which is establishment similar no active role in “perform adoption kind of designated ordinance; they merely cities and permit counties such adopt ordinance if so they desire.” Cal.3d at
HI Our concern here transcends the conduct specific in which Ms. Morris which, know, for all we engaged, have involved good deal more than the mere of her baring fact, buttocks and inmay, have been obscene. For, (2) is not the That issue. “even though statute or ordinance may be constitutionally applied activities of a defendant, particular defendant it on the may challenge basis of overbreadth if it sois drawn as to within ambit sweep protected speech expression of other not persons Inn, (Doran before the Court.” v. Salem Inc. (1975) 422 U.S. 648, 660, This, 2561].) L.Ed.2d course, S.Ct. “[b]ecause laws, ones, like overbroad deter vague privileged activity ...” (Grayned City v. 408 U.S. 222, 231, Rockford 2294].) by‘Ms. The dance Morris was performed undoubtedly more offensive to the residents of Santa Clara than other entertainments which may be nude—ballet, But the example. First Amendment does performed courts generally permit legislatures distinguish between these activities. because largely governmental officials cannot make “[I]t distinctions this area that the Constitution principled leaves matters of (Cohen so to the individual.” style largely taste California 284, 294, 15, 25 “[WJhile *6 afforded a nude ballet at by entertainment Lincoln Center to those who can (as the differ in content pay vastly viewed price or in judges) (as by critics), may viewed not differ in substance from quality the dance who, the worked having viewed overtime for the person necessary wherewithal, wants some ‘entertainment’ with his beer or shot of rye.” Inn, (2d 1974) 18, 21, (Salem 3; Inc. Frank Cir. 501 F.2d fn. remand, 1045, 1048.) 522 F.2d We must concern ourselves with form any which falls within the strictures of entertainment of the Santa Clara ordinance. in Crownover
Our rested on alternative opinion First the grounds. conduct, the stated that ordinances disputed regulated not majority speech; do not entertainment but “They merely that if prohibit enjoin the it, entertainer or offers he or she must have some clothes performer on.” entertainment, stated, (Id., 9 Cal.3d at Such nude the is majority 426) of communicative (id., devoid but a gimmick” “sales nothing expression.4 a conduct included communicative ele- assuming such
Alternatively,
the
United
ment,
tested the ordinances under
formula set out in
majority
v. O’Brien
(1968)
Crownover
grounds
dissent
are manifold. O’Brien
a law
case
involved
which
and the present
occurred,
cards wherever
draft
conduct
burning
prohibited
its face aim at
regulation
protected
did not on
speech;
when it
in the
nudity only
bar
occurs
context of
proscribe
ordinances
communicative
entertainment. The act
a
burning
draft card
protected
communication;
no
relation
of an
integral
protected
costuming
bears
integral
entertainment. The
unquestionably
part
entertainer
in O’Brien on which
majority
rely
discusses
language
majority’s
criticized the
distinction between
dissenting opinion
Crownover
4 The
theory
“The
of this
would let
adoption
communication:
the censor
conduct
any
will
restriction to condemn at
and all
without constitutional
loose
communicative
speech,
to the
could
avoiding reference
actor’s
the state
ban his
While
entertainment.
actors,
(or
costuming),
positioning
lighting
gestures,
costuming
his
amount
county
If a
to prohibit
it chooses ....
seeks
or whatever other ‘conduct’
stage,
of the
entertainers,
demonstration,
hair,
wearing
public
long
from
a
participants
dress,
omitted],
opinion
the majority
or uniforms
can be
[citation
unfashionable
436;
Tobriner,
J.)
dis.
legislation.”
opn.
Cal.3d at
uphold
such
construed
important
the ordinances
further an
majority explained
conclusion
5 The
regulations
gainsaid
important
further ‘an
cannot
governmental interest: “[I]t
O’Brien,
(United
States v.
governmental interest’
or substantial
province
public
note
morality,
It is our
to take
not to
),
promoting public morals.
.
. .
say
society
‘topless’
or a
pluralistic
we cannot
female
‘bottomless’ or
In this
it.
dictate
place
place open
public
‘socially
sex in
either
person
*7
Indeed,
legislation conceivably gives
instant
....
the
commonplace’
omitted]
[citation
people
is not in
with the mores of the
nude conduct
accord
that such
some indication
427;
original.)
(Crownover, supra,
at
italics in
9 Cal.3d
whole.”
dissent,
the
that some
explanation
incomplete;
persons
fact
this
the
As noted
important
an
not demonstrate
state has
immoral does
certain behavior
consider
442-443,
(See
opn.
Cal.3d
pp.
that behavior.
dis.
suppressing
in
interest
substantial
discussed,
in
Tobriner, J.)
As will
proven the dissent correct.
Time has
Erznoznik
125, 132,
205,
2268],
95 S.Ct.
the
(1975) 422
L.Ed.2d
Jacksonville
City of
public
that
morals alone
flatly rejected
argument
Court
Supreme
States
United
nudity.
depicting
outdoor movies
justify
prohibition
of a law
constitutionality
conduct
regulating
as applied to an act of
‘symbolic
speech’;
present case concerns the
on its
constitutionality
face of ordinances regulating protected activity,
Finally, and most
[f]
(cid:127)
in
’Brien the
important,
O
court extended limited First Amendment
which,
protection
‘symbolic speech’—conduct
normally noncom-
municative, is invested with symbolic significance by The
protestant.
case
present
has
do with
nothing
symbolic speech. It has
to do
nothing
with
entertainment,
It
protest.
concerns communicative
which
activity
heretofore has been entitled not to limited but to
protection under the
full
(9
439;
First Amendment.”
Cal.3d at
italics in
original.) Significantly,
no subsequent decision of the
Court has been
based on application
(See
of the O’Brien test.
Chase
(9th
v. Davelaar
1981)
Cir.
645 F.2d
14.)
fn.
us,
While Crownover was
before
pending
United States Supreme
on nude
upheld
regulations
entertainment promulgated by the
California Alcoholic Beverage Control Board. (California
v. LaRue
A review the reveals that the majority Crownover Crownover failed to following law Crownover’s future in several anticipate developments respects. LaRue, the constitutional discussion and its failure to recognize alcohol and between which serve significance places LaRue’s distinction not, Both Crown- those which do have to be erroneous. proven plainly such, and, as is conduct nudity over’s alternative dance holdings of First Amendment or that protection, beyond scope opposition a substantial state interest in its generates to nude entertainment under the force later decisions. also crumble suppression,
561 Inn, Inc., decision, supra, Doran v. Salem first such The the Court with a case similar to very Supreme United States the presented York, an New enacted of North Hempstead, The town now before us. one all The owners in public places. banning topless performances ordinance of the ordinance. The town to enforcement enjoin bars sued three topless the issue -whether raising plaintiffs injunction, a preliminary from appealed on of ultimate success the the likelihood showing a “made sufficient (Id., at 660].) at L.Ed.2d p. 932 p. merits.” [45 LaRue, supra, on U.S. the town relied 409 Although California LaRue, it Court distinguished precedent. States Supreme
the United
the
of the States
the sale
said,
regulate
“that
broad
powers
held
Amendment,
the
First
Twenty-first
outweighed any
conferred
liquor,
at
in nude
...”
dancing
interest
p.
Amendment
[45
ordinance,
hand,
the
660].) The North
other
Hempstead
L.Ed.2d at p.
which
to many
not
serve
but
other
merely
places
liquor,
“applies
(Id.,
660].)
well.”6
at
L.Ed.2d
at
p.
as
p.
establishments
the court noted that the town
not
Sustaining
injunction,7
the
did
preliminary
state interest
[beyond
other
interest
in
any
legitimate
regulating
“raise
counterbalance the
would
constitutional protection
the sale of alcohol]
are
afforded to activities which
within the
plainly
reach
presumptively
(Id.,
661].)
at
at
L.Ed.2d
p.
p.
opinion
ordinance].”
[the
not
whether
the town asserted
interest
does
state
protecting public
morals,
(not
regulation
alcohol)
since
morality
but
was the
public
(see Comment,
Topless
and the
Dancing
force behind
ordinance
driving
Experience A New York Town’s
Constitution:
Buffalo L.Rev.
this
753, 755-759), we must infer the court considered
interest
and found
insufficient.
quoted
approval
with
Supreme
United States
the decision of the
6 The
district court
describing
only prohibits
‘“The local ordinance here attacked
topless
the ordinance:
any
appearing
“any
prohibits
public place”
in bars but also
female from
with
”
interpretation
“any public
place.
breasts. There is no limit
of the term
It
uncovered
hall,
theater,
house,
opera
as well
a
market place,
include the
town
street or
could
Thus,
assembly,
prohibit
this
any
indoors
outdoors.
ordinance would
place
unquestionable
and a
of other
the “Ballet Africains”
number
works
performance of
(Doran,
socially
significance.’”
redeeming
p.
plaintiffs had “made a sufficient success on Therefore, (Id., Court’s decision merits.” was, indeed, decision, holding void for overbreadth. The was not however, necessarily places liquor an ordinance not implied that limited serve interest, supported a substantial state and it has been so unless unconstitutional by lower courts. interpreted *9 562 Doran, decision in
Following town of North Hempstead bars, to its ordinance ban topless restaurants, amended dancing only similar establishments. Court of Appeals the Second Circuit nevertheless affirmed a permanent injunction against enforcement of the amended ordinance on still ground it “to not applied places serving Inn, (Salem . .” . . beverages (2d alcoholic Inc. v. Frank 1975) Cir. 522 1045, 1047; italics in original.) said, F.2d recognize,” the court “[W]e there only “that modicum involved expression the conduct of dancers. But that modicum is one of appellees’ constitutional signifi (Id., town, 1048.) . . . .”8 at p. cance If the to attempting prohibit others, in some topless dancing establishments falls “between the of overbreadth and the Scylla Charybdis unequal protection, this is to attempting because matters which the regulate First Amendment (Id., 1049.) choice.” leaves personal cases followed the lead of the Subsequent Court Supreme and the Second (See (E.D.Wis. 1976) 892, 894-895, Circuit. v. Brennan Saxe 416 F.Supp. 521; (7th 1976) (D.Ariz. affd. Cir. 544 F.2d Attwood v. 1975) Purcell 402 231, 236; v. (1976) Fairmont Koppinger City 311 F.Supp. Minn. 186 708, 714-716]; People (1976) N.W.2d Nixon 88 Misc.2d [248 913 Buren, 518]; N.Y.S.2d Gate v. Town Van Etc. [390 Lucifer’s 83 Misc.2d N.Y.S.2d In Judicial Supreme Court described the trend Massachusetts of decisions: “Before 1975 bottomless prohibition topless designated establishments was as directed widely against conduct rather than upheld speech. [Citing cases, nine But it now seems including clear that such Crownover.] the First if ordinances violate Amendment not limited to places dispensing (Commonwealth v. E. beverages.” Gregory alcoholic Sees 1151, 1154-1155].) N.E.2d Mass.
A decision of United States recent for the Appeals Ninth Davelaar, In Circuit confirms this conclusion. Chase v. 645 F.2d the court enforcement of a upheld injunction barring county identical nearly ordinance at issue here. The court observed that had the ordinance establishments that “applied sell been alcoholic it would have . beverages, apparently constitutional . . .” doubt,” stated, (Id., “There can no court appears observation—asserting 8 Thedissent to miss this crucial that the United States “ protection” Doran the- minimum’ dancing. Court in accorded ‘barest In fact, dancing may court that nude involve “the stated barest minimum of course, (Id., p. 660].) U.S. at L.Ed.2d at Of expression.” even protected expression performance that involves the barest minimum is entitled to full protection. First Amendment *10 of breasts in that any place It bans the overbroad. display “is ‘theater, not, is a concert not alcoholic or beverages, food serves . . . devoted to theatrical establishment primarily similar or other hall Moreover, would prevent . . . [ordinance] peformances’. that is not obscene entertainment offering from
affected establishments to make material law, alone is not sufficient nudity since current under non-obscene entertainment is Such obscene. omitted.] legally [Citation ” 737; italics in (645 F.2d at p. the First Amendment. omitted.)9 fn. original; decision, United States next to the most recent
We turn (1981) 452 U.S. Authority v. Bellanca Liquor [69 York State New 2599], a New which York statute upheld L.Ed.2d nude in establishments licensed dancing on-premises prohibiting artistic or concluding liquor, consumption “[w]hatever overcome dancing value attach to is may topless communicative the Twenty-first of its broad under powers arising State’s exercise (Id., . at at The Bellanca . . .” p. Amendment “What the New York has noting: Legislature Doran distinguished court this a State do in in this case is what Court has said precisely done to its the sale within its power regulate liquor Doran. Pursuant boundaries, it a granted has banned in establishments topless dancing . . . license to serve . . . . some with the liquor Although may quarrel , . . of . . nude or . . legislation [barring topless dancing] wisdom Amendment makes that a for the state Twenty-first policy judgment (452 not the courts.” U.S. at 717-718 L.Ed.2d at legislature, pp. 361]; added.) The explicit italics court’s reliance on the Twenty-first Amendment confirms a of earlier cases that holding prohibition nude which dancing Twenty-first extends the reach of the beyond establishments which do not serve Amendment is encompass liquor overbroad.10 Chase. ignores holding importance Its simply 9 The dissent Ninth Circuit’s should only holdings growing It not confirms the of a number of state and be underestimated. matter, that, courts, but, Crownover practical as a it means were we to rule that
federal could, viable, convicted, simply remains Ms. if move across street the federal Morris (See corpus exhausting after her and obtain a writ of habeas state remedies. court (1976 1980).) Supp. & IV U.S.C. § Bellanca, Stevens, dissenting “Although the 10 Justice observed: Court has written opinions implying dancing expressive several nude is a form of partially that nude Amendment, activity protected by directly the First the Court never confronted the has 362]; omitted.) question.” U.S. at fn. however, refers, quite strong one. The court’s implication which Justice Stevens not, serves one which distinction between an establishment which alcohol and does LaRue, both opinions distinction central to its California decisions, our review of the From we foregoing draw vital ban (1) A on nude be dancing conclusions. cannot sustained on the theory conduct and does not regulates impinge upon protected speech. without, cases, nude dancing Nonobscene cannot barred in some upon constitutionally infringing protected expression.11 (2) An enactment nonobscene prohibiting ex tends establishments alcohol beyond serving presumptively over- of these broad.12 Each conclusions is fundamentally odds with the *11 the Crownover We conclude that the reasoning majority. analysis in viable, that, is no longer Crownover declare to the extent that it is Twenty-first modifies at corresponding Bellanca, contains no reference to the Authority either establishment. Likewise much of .... entitled to some measure of noted: no lesser Salem violate that ordinances [68 On remand from the United p. L.Ed.2d 235*; [1] Inn, “[T]he the the would (1981) Nor vitality state Constitution’s free Inc., see also Mickens v. right Amendment with 671, provision modifying guarantee of is prohibiting curtailing be supra, 422 54 of freedom of there what the than pointless N.Y.2d anything effect of its topless freedom of 2176] protection if Supreme U.S. 922 and Schad v. Mount set 228 States nude entertainment can claim no respect expression City forth [445 necessarily speech guarantees. (Bellanca the Supreme the State guarantee of Court has held is the diminishing effect of the Twenty-first Amendment). N.Y.S.2d under the First Amendment. expression in the Federal Constitution Kodiak Twenty-first the court’s the assured Federal Court, premises rests (Alaska 1982) 87].) by set forth in language Amendment itself which the our State Constitution. guarantee Explaining licensed New York Court of assumption Ephraim (1981) and discussion in Doran v. 640 P.2d our State Constitution constitutional v. New freedom of by freedom of Our State Constitution the state (considered that nude dancing is decision, York State ” 452 protection liquor Appeal (54 expression expression inhibits the court U.S. N. Y.2d without Liquor board is held 61 or
*445 page N.Y.S.2d at 90. 11 563, (1968) 655, In re Giannini 69 Cal.2d Cal.Rptr. 535], 567-568 [72 446 P.2d that “[although Supreme stated the United States Court has not ruled precise on the question performance whether the potentially of a dance is a form of communication protected against by state intrusion guarantees of the First and Fourteenth Amendments Constitution, very federal definition dance expression describes it as an Thus, ‘Dancing rhythmical emotions or ideas. consists any movement of parts all body of the in accordance with some scheme of individual concerted action which is (7 expressive of emotions or Encyclopaedia ideas.’ (1945) 13-14.) Britannica . . . ‘The perhaps dance is spontaneous earliest and most mode of expressing emotion and feeling; variety dramatic in great exists of forms and among some people connected religious practice, among with belief and Mohammedans and Hindus.’ The Century 1450.)” Dictionary and Cyclopedia Giannini, years after Supreme In the Court has confirmed that dance is a medium of (Schad protected by expression federal Ephraim, Constitution. v. Mount supra, 452 61, 671, 678]; Inn, Inc., U.S. L.Ed.2d 922, [68 Doran v. Salem 422 U.S. 648, 659-660].) L.Ed.2d 932 [45 litigant 12 It is well settled that “a whose own activities are unprotected may challenge nevertheless showing statute it substantially abridges the First rights parties Amendment of other not before the court.” (Schaumburg v. Citizens for 620, , 85-86, Better Environ. 444 U.S. 634 L.Ed.2d 73 826]; [63 100 see Grayned 104, City Rockford, supra, v. also 231].) Consequently, each cases discussed in our review of subsequent decisions v, Musick, supra, 9 Crownover opinion, with present inconsistent overruled.13 Cal.3d
IV conclusion that ordinance No. B13-14 affects us to it down.14 In necessarily not strike values does require 2L.Ed.2d Ephraim, supra, Mount Schad that an ordinance which United States 680], suggested here, one such as the at issue liberty,” a protected “infringes upon if it is drawn” and furthers “a “narrowly be sustained nevertheless (Fn. omitted.) interest.” Schad further government substantial sufficiently substantiality that courts “must assess directs but also determine whether those interests interests asserted governmental means that would less intrusive on activity protected be served by could (Id., First Amendment ...” *12 Schad, nude owner an adult bookstore which presented dancing In the óf which failed to validity borough zoning regulations the challenged limits. borough form commercial entertainment within any provide various interests advanced to sustain the borough Reviewing concerns, need for planning regulations—community parking problems, court found those and similar matters—the interests protection, police It cautioned that legislative preferences insufficient.15 “‘[m]ere expressly standing that who has plaintiff Crownover holds a serves alcohol nevertheless to dancing the overbreadth of an enactment which nude in establishments attack bans that do not serve alcohol. (1978) v. 13 Language Enterprises, Cal.App.3d Theresa Inc. Davis 81 940 [146 802]; (1976) 287], Cal.Rptr. 65 Cal.Rptr. Cal.App.3d Renba Lil v. 467 [135 Kortz (1979) Conway Cal.App.3d 103 People Supp. Cal.Rptr. v. 7 court [162 877]—lower disapproved to the extent it is which relied on Crownover—is inconsistent with decisions opinion. present Davelaar, 738, v. page Chase 645 F.2d at the Ninth Circuit noted in 14 As is does disputed overbroad not mean that ordinance] because it must “Simply [the held automatically ‘particularly invalid. The Court has be held where involved, ... merely speech the overbreadth of a statute must not and not conduct well, real, legitimate in relation the statute’s judged plainly sweep’ as to but substantial be Oklahoma, 601, 615, (Broadrick v. 413 invalidating the statute. U.S. 93 S.Ct. justify 2918, (1973).)” 2908, 830 37 L.Ed.2d addition, zoning provision could not be the court stated that sustained as 15 In “Here, time, Borough totally regulation because: excludes all live and manner place, entertainment, including dancing protected by nude that is nonobscene otherwise the First 685].) (452 Similarly, at 76 L.Ed.2d at U.S. instant [68 Amendment.” time, place and manner restriction because it upheld completely be not issue, The appears placing entertainment. dissent confuse this nude or seminude bars Mini 427 50 Young v. American Theaters U.S. heavy reliance on [49 regulation 2440], geographical limited adult which considered entertain 573, 575, (See opn. pp. dis. at The outright prohibition. Young court ment—not matters of
beliefs respecting convenience may well support activities, at other directed but regulation personal insufficient justify as diminishes exercise rights such so vital to the maintenance of democratic institutions .... weigh [Courts circumstances and must] . . . of the substantiality reasons appraise advanced support of the free regulation enjoyment (Id., rights.”’ [First Amendment] 681]; U.S. L.Ed.2d at Schneider v. State 155, 164-165, 146].) county argues its interest in “the promotion of public morals” is sufficiently substantial uphold ordinance. While the desire to control undoubtedly what may be viewed as immoral behavior reasons, inarticulated, is one of the often for the passage most ordinances here, as the such one issue Schad and Doran demonstrate that it is insufficient. Schad,
In
court
high
considered a contention similar to that of the
ounty,
“Mount
noting
. . .
Ephraim
speculates
Borough may
lave concluded that live
undesirable.”
U.S. at p.
fn. 15
LaRue,
L.Ed.2d at p.
Distinguishing
California
supra, 409 U.S.
court
explained
such “speculation lends no
First,
ordinance.
support
challenged
regulation] excludes all
[the
entertainment,
live
live
just
nude dancing. Even if Mount Ephraim
*13
restrictions on
might validly place
certain forms
live
nude dancing under
ordinance,
a
drawn
narrowly
this would not
justify
exclusion of all live
or,
reveals,
entertainment
insofar as this record
even the nude dancing
Second,
in
involved
this case.
the regulation
in
challenged
v.
California
LaRue was
after the
adopted only
of Alcoholic
Department
Beverage
Control had determined that significant
were
problems
linked to the
Third,
that was later
activity
regulated.
v. LaRue the Court
California
relied
on the State’s
under
heavily
power
Twenty-first Amendment. Cf.
Inn, Inc.,
Doran
v. Salem
This that the belief of language necessarily a implies majority that community nude is immoral is not itself a sufficiently quite “The would be different if the specifically noted: situation ordinance had the effect of to, (Id., greatly suppressing, restricting speech.” p. or access lawful at 71 fn. 35 [49 p. L.Ed.2d at 327].
567 form of total that interest to justify prohibition state substantial alcohol. which do not serve in establishments entertainment are not sufficient bar otherwise moral objections conclusion that The Jacksonville, City confirmed activities is Erznoznik considered the explicitly in which 422 U.S. supra, There, a context similar to the case. present objections of moral weight drive-in theaters from showing that a statute barring the argument rejected buttocks, male or female human female bare which the human “in movies (Id., are . . . .” areas shown at breasts, p. human bare pubic [45 129]) interest its city’s was justified protecting at p. L.Ed.2d (id., that bemay materials offensive” from “unwilling exposure citizens children, 130]) and in at morals of protecting L.Ed.2d p. at p. [45 these outdoor As to the first watching allegedly performances. who were rationale, that while that we encounter offends the court noted “[m]uch moral, sensibilities,” esthetic, (id., if not our at p. political our censor, “when the 131]) at p. government, acting L.Ed.2d from some kinds of on the selectively to shield speech undertakes others, more offensive than the First Amendment they are ground also, 131]; at (Id., at see p. limits power.” strictly Frank, Inn, As to other Inc. v. F.2d at supra, city’s Salem children, notes, rationale, the court that is “Speech protection as to nor to some other youths legitimate obscene subject neither cannot from ideas or solely young be suppressed protect proscription (Erznoznik, thinks for them.” unsuitable legislative body images The weight can no moral in this case county’s objections certainly given Erznoznik, there in the case is no present allegation than in since greater have victims been unwilling subjected dancing. children ordinance No. B13-14 is Equally unpersuasive is contention that as a means justified the health of Santa Clara’s citizens. protecting *14 who to serve county argues “if those are persons employed prepare, are handle food and or to food and beverages entertain where beverages, served, nude, and in the to danger do so in the the increase risk of prepared In the health of the of such increase.” sup- consumers items would greatly contention, Safety of this and Code section county the cites Health port 28686, which, of the dress and cleanliness regulates other among things, serv- food If the to those those and serving beverages. applied only and food this could be argument persuasive—especially ing beverages, the mere because no sensible would the argument support proposition However, is a form handling of food of serving expression. existence of 28686 that the the Health and Code section indicates very Safety of; concern we with health considerations has been taken care county’s cannot understand itself, how nude or topless a health risk dancing, poses short, to viewers. In if ordinance No. B13-14 intended to the protect health of citizens, Santa Clara’s it is overbroad.16 vastly
We conclude with fewa brief observations about moral specific the concerns in the expressed dissent.
On the that what is subject involved here is not the freedom of expression but her performer, employer’s exploitation of that for we can performance profit, Joseph to point Burstyn, Inc. v. Wilson 1098, 1106, 777], L.Ed.2d which established once and for all that it is immaterial whether an activity which enjoys First Amendment is carried on protection for profit.
As far as the extensive from quote Professor Clor’s article is concerned (Clor, Public and Free Morality Expression: The Judicial Search for Reconciliation Principles 1305), L.J. Hastings we merely that the observe cited forms anof for passage part argument type near-obscenity control was given a constitutional green light Theatres, v. American Mini Young s Needless to if say, local authoritie wish to regulate 326-327]. entertainment protectible otherwise medium of through Young type feel should not zoning, they discouraged read in by anything they this opinion. on the issue
Finally, effect female degrading exploiting nudity that is say what can we relevant?17 Would legally for profit, argument the model who for the de posed affected Venus Milo? Is it have applicable not, the Louvre? what If legal—as to management distinguished there in on artistic—reason Ms. Morris and the zeroing from has been body The female of artists time inspiration from Hiphugger? have Their motivations from ranged highest purest immemorial. We need detail the and most Court’s degrading. vilest distinguish from pornography protectible efforts expression. heroic (1973) 413 U.S. 15 Miller (E.g., California be contended that the law—as from cannot Surely distinguished controls, church, media, such as family, peer groups, societal other designed county suggested prevent also ordinance is breaches of 16 The has However, linking topless nude or with of the no evidence breaches peace. established, goal preserving peace if a link were been offered. Even has peace actually narrower ordinances addressed those who commit equally served would peace. breaches *15 course, county. has not been raised The reason is obvious: argument 17 Of this sexes, any protect performers purpose avowed of both the ordinance affects since increasing suggest we it At the same time would make overinclusive. women “strip joints” point of makes the dissent’s underinclusive. male prevalence
569 which nudity who the arbiter segregates the role of assume critics—should form, the human of beauty exalts and from that degrades, insults and male female. issue as prayed.
Let writ of prohibition concur, I cite not the federal First would NEWMAN, J. though I Constitution, I, article section California solely but Amendment of that speech” (a). “liberty Encroachments subdivision there has been an “abuse.”1 when only are authorized section fear, read, I “nonobscene” protect might opinion The majority ante, 563; cf. as to (see, 564 only e.g., p. p. [“obscene entertainment Jacksonville youths”]). The opinion (1975)] reminds [205] us (quoting 209 Erznoznik 125, 130- City 2268]) of the United States Court’s rejection selectively shield the from “undertakes some that censorship than others more on the are offensive they kinds speech ground “obscene” (ante, 567). possibly But what about censorship ...” definition, mere Are offensive to they, by sufficiently kinds expression? not; hardly I think and in seems our fitting restraint? 1980’s justify brand “obscene as an abuse of dancing” liberty speech. in dicta to court Manaban, (1982) Is Sex (Cf. Obscene? Human No. Rights [inside “The fact or even cover find distasteful page]: many people obscenity the First should make Amendment nauseating inapplicable.”) immunize here do I submit that only, nonobscene dancing If majority (1968) re of In Giannini 69 Cal.2d Cal.Rptr. commands ante, 11), (see fin. maj. regarding obscenity 446 P.2d opn., 535] law, need are: re-emphasis. They “expert testimony California under to establish standards” [contemporary] community be introduced should 574); ‘community’ is the entire of California” (2) “the relevant State (p. that, “the must evidence 577); and introduce prosecution [also] (p. standards, community dance questioned contemporary applying interest audience affronted standards prurient appealed 567). must community” Not those (p. decency accepted addition, but, be met the trial must be judge persuaded requirements was drawn’” and furthers “‘a “‘narrowly pertinent ’” ante, . interest . . governmental substantial (Maj. opn., sufficiently write may freely speak, publish his or her sentiments “Every on all person A law right. abridge for the abuse this not restrain being responsible subjects, speech . . .” liberty of . 68 quoting *16 Schad v. 671, 680, Mount Ephraim (1981)] 101 S.Ct. 2176)].) [61]
“[V]ague statutory . . . language creates the danger that police, prosecutors, judges will lack juries sufficient standards to reach their decisions, thus the door to opening or arbitrary discriminatory enforcement of the law.” (Pryor v. Municipal (1979) 25 Cal.3d 252 [158 330, 599 P.2d Cal.Rptr. 636]
RICHARDSON, J.
respectfully dissent. The majority
I
overrules our
own decision in Crownover v.
Musick
The challenged presumed be constitutional. (City Industry v. Willey 11 Cal.App.3d Cal.Rptr. Moreover, it is solidly based two upon legitimate and substantial interests: the governmental traditional interest of local communities in welfare, morality and promoting public general and the concern emerging over the social harm caused the sexual exploitation and degradation of women for We should profit. sustain the ordinance. 318.6, its Penal Code sections 318.5
By adoption the Legislature has authorized municipalities regulate nude or seminude entertainment. Section 318.5 of ordinances which permits adoption directly regulate “the or buttocks of or the exposure genitals breasts of any person waiter, waitress, who acts as a or entertainer ...” in places food serving or The section beverages on-premises consumption. further recites that theater, hall, “shall not to a apply concert provisions similar ” which is devoted to establishment theatrical primarily performances. 318.6 of similar permits adoption Section ordinances “relating] to any demonstrations, acts, or exhibitions which live occur in public places, view . . open public, places open . .” places This contains a also for a “theater . . . specific exemption section primarily devoted theatrical performances.” county’s with the complies foregoing and no one
statutory contends otherwise. The provisions sole question before us is whether that ordinance represents unconstitutional restraint some form protected expression. upon *17 Crownover, we identical substantially in ago upheld nine years
Just constitutional which challenges urged identical against ordinances communicative the First activity a form of protected is dancing nude the contention which now majority In flatly rejecting Amendment. held, nude ordinances alternatively, dancing regulate we accepts conduct, and such no First Amendment activity enjoys not speech, “communicative element” may even if some protected protection, interests exist, governmental justify regulation and legitimate appropriate 425-428.) (9 Cal.3d at dancing. of nude or prohibition Crownover, Sullivan, in for our court in made the writing Justice which retain their essential validity observations today: cogent following are of the ordinances directed at these provisions “It is clear not at or at and bottomless conduct exposure—and speech conduct—topless A akin to common sense ‘closely speech.’ ‘in essence’ speech which is is that they pertinent provisions proscribe construction [citation] They do not entertainment but prohibit public places. in nudity specified it, he or the entertainer offers she must performer that if merely enjoin have some clothes on. In a word the ordinances regulate conduct. [1] Is in the constitutional sense? Is this bars and nudity symbolic conduct such so communicative inherently public places open other specified nature as to call for the protection given ‘interchange ideas .... [1] even the social slightest redeeming importance’ having ideas [a]ll own negative their answers. provide seem questions [citation]? cities with is big we wish to blind ourselves what happening Unless tawdry ‘nude live acts’ in and ‘bottomless’ bars and ‘topless’ their if not the entire it is community, the neighborhood that blights atmosphere more than a conduct is sales nothing that such knowledge common in the face of these realities is delusive speculate It gimmick. milieu communicative will acquire protectible in this
entertainment of the or female breasts area by exposure genitals, pubic properties in instances ensue that there Assuming arguendo performers. sense, we in the constitutional do not is communicative expression or manner of to regulate unreasonable think form 425-426, italics original.) (Pp. communication.” ordinances regulate that nude concluded initially Having Crownover, for the nevertheless assumed we than speech, rather conduct element” a “communicative instances that in some of argument, purpose of United States v. four-fold test invoke which would exist might 679-680, (1968) 391 O’Brien constitutionally conduct such whether 1673], to determine test to such ordinances: the O’Brien then applied We activity. “First, it cannot be doubted that the governmental entities in the instant have the inherent cases constitutional power regulate conduct in bars, restaurants and other It is clear that public places. such regulations are considerations of justified by morals and general welfare two, to mention and the very elasticity the police power [citations] it the to meet the reasonable current gives capacity of a requirements *18 world. changing [Citation.]
“Second, it cannot be gainsaid regulations further ‘an important O’Brien, (United or substantial interest’ States governmental v. supra, 391 672, 680]) morals. It promoting public is our to take note not to province public morality, dictate it. In this we society cannot female say ‘topless’ or ‘bottomless’ or pluralistic of either sex in a or nude person public place place open is or has the ‘socially of a commonplace’ support ‘societal [citation] Indeed, consensus’ the instant legislation conceivably gives [citation]. indication that such nude conduct is not in accord some with the mores of whole. as a the people
“Third, also clear that this governmental it is interest in regulating (United . . . .’ conduct is ‘unrelated to the of free expression suppression O’Brien, at aimed States The regulation 391 U.S. supra, conduct, [citation], at identifiable not conduct’ not at speech; ‘separately activity ‘entirely divorced from con- or actually disruptive potentially duct . . . .’ [Citation.]
“Fourth, if the ordinances incidental restriction on impose any First (and we doubt do) freedom speech expression they Amendment than is essential to the ‘no furtherance of greater certainly it is [an (United interest.’ governmental] or substantial States v. important O’Brien, 377.) The ordinances do not prohibit speech entertainment; direct that the they merely entertainer or expression or breasts with ordinances genitals exposed. proscribe appear cannot to ban which has been necessary nudity deemed more than no welfare or morals. to public harmful that, therefore made of some upon assumption
“We are satisfied discussion, here in the conduct under element communicative four set all of the down requirements us meet before ordinances O’Brien case. in the Supreme therefore, the ordinances on their do face.
“We,
conclude
freedom of
but are valid
speech
expression
the rights
infringe upon
of this conclusion we reject plaintiffs’
In light
of conduct.
regulations
Cal.3d,
broad.”
unconstitutionally
are
that the ordinances
contention
427-428,
omitted.)
fns.
in original,
italics
in the fact that the United States significance
is some
There
nation,
First Amendment values in this
denied
Court,
arbiter of
the final
1443]).
(415 U.S. 931
Crownover
certiorari
Crownover
retreat from our
principles,
present majority
To justify
a few decisions from lower federal courts and
upon
principally
depends
decisions of the
court.
dicta from wholly inapposite
high
inconclusive
upon
sources,
conclude that
of nude
my colleagues
regulation
barren
From these
(ante,
563) and that such
upon protected speech”
dancing “impingefs]
“
if it is
drawn’ and furthers ‘a
‘narrowly
be sustained
regulation
(id.,
565).
substantial
interest’”
sufficiently
governmental
Relying
*19
cases,
labors to extract a
that “the
the majority
principle
promotion
these
an insufficient state interest to
such
justify
regulation
morals” is
public
566). These conclusions are
(id.,
wholly unsupported by any
at p.
post-
of the
tribunal which I now
review.
high
briefly
Crownover decisions
(1975)
Jacksonville
Similarly, 2561], court affirmed a high L.Ed.2d preliminary directed at a ordinance which municipal prohibited “topless” injunction (Italics added.) in Doran is in “any public place.” significant two dancing First, in the nature of the constitutional describing implications respects. .of said, in tribunal was cautious court dancing high approach. such dictum, “may that such “barroom” nude involve dancing in be entitled to expression,” “might minimum First protected barest under some Fourteenth Amendment circumstances.” protection Second, 660], added.) italics L.Ed.2d Doran court (P. 932 [45 “ under attack ‘not only the ordinance there prohibits topless stressed female from any in bars but also prohibits appearing “any dancing uncovered breasts. There is no limit with place” public theater, It could include the of the term “any public place.” interpretation hall, house, as well as a market street or place, any opera place town Thus, or outdoors. this ordinance would indoors assembly, prohibit of the “Ballet Africains” and a number
performance of other works of artistic and socially (P. unquestionable redeeming significance.’” 933 [45 660], L.Ed.2d with quoting approval lower court in Doran, opn. added.) italics Without the “ultimate merits” reaching of the constitutional court determined that high the trial question, court did not abuse its issuing (P. discretion preliminary injunction. wholly
Doran is thus
as it
inapposite,
does
involving
a total ban on
dancing regardless
either the location or the theatrical
“topless”
nature
contrast,
In
performance.
regulation of nude
municipal
dancing
Crownover,
us,
again
before
exactly
specifically does not extend to “a
theater,
hall,
concert
or similar establishment which is
devoted to
primarily
Code,
(Pen.
318.5,
theatrical performances.”
318.6.) Moreover,
§§
that nude dancing
while
suggesting
might represent
“barest minimum”
circumstances,”
“under some
expression
the high court
Doran,
declined
that issue.
explore
expressly
does not
accordingly,
reconsideration of
any
Crownover’s initial
require
assumption
conduct,
without clothes restrains
regulation
speech.
is Schad
Ephraim
Nor
v. Mount
Finally, 2599], affords no likewise support L.Ed.2d 714 [69 Rather, Bellanca reinforces the for the majority position. whatever of the Crownover remain that the intact. validity principles fully conclusion Bellanca, court a statute nude upheld state high prohibiting In dancing Court declined to determine to Supreme bars. Once what again, nude First Amendment any dancing partakes protection, relying extend a overriding grant authority state’s upon express regulate instead words, of alcoholic In beverages. the court’s consumption sale communicative attach may artistic or value to topless “Whatever dancing exercise of broad the State’s its by powers arising overcome under the (P. L.Ed.2d Amendment.” Twenty-first need not on how the draftsmen of
We the First speculate Amendment if, have had been they would asked the responded question in bar a whether nude a by banning dancing county board supervisors the freedom of as the thereby “abridging speech” was Founding Fathers the constitutional The phrase. understood important point Court has never so held. This is confirmed fully Justice in his in Bellanca: dissenting opinion Stevens the Court “Although has several nude or written opinions implying nude partially is a dancing activity Amendment, form First expressive protected by the Court never directly has 718-719 question" (Pp. confronted 362], omitted, added.) fn. italics justice then adds this interesting “I confess that observation: must if the question whether a State may nude or partially commercial prohibit establishments were merits, confronted I well might conclude that this squarely is the sort be resolved elected question representatives of community.” 364], (Pp. italics added.) Pre cisely. all of the
Notwithstanding foregoing, present draws majority from Erznoznik, Doran, Schad and Bellanca sweeping wholly *21 unwarranted conclusion that a ban on nude dancing impinges upon so, Not for in speech. Justice Stevens’ Bellanca, words in the court “has never high directly confronted the question.” In this connection, and due Circuit, with deference to Ninth I neither ignore nor with the views agree (9th in Chase v. expressed Davelaar Cir. 1981) F.2d 645 735. Within context of the constitutional of nude implications in a dancing nontheatrical setting, until the Supreme Court itself speaks issue, I the interim of a accept evaluation member tribunal, of that high which, Chase, was made incidentally, remains question after meantime, course, In the of unresolved. as the notes, majority properly their remedies may pursue where will. litigants they this At it is fair ask whose point, freedom of does the speech majority Is it that of the protect? seek dancer whose is not that of message oral or
576 dance or all of written which are speech song expression, permitted, from the who is restrained removal all but Or is it the clothing? owner, who, of the dancer’s the bar for employer, freedom profit, exploits Or to sell alcoholic is it that of beverages? the bar “speech” patron, such message” by receiving who communication? Whoever’s “gets nature, and whatever its if any, freedom is tribunal has never high that it would over prevail public those interests which were indicated (9 Cal.3d identified us in Crownover. by constitutional,
The no presumed United being States then, it, our decision as I conceive being contrary, inquiry whether and ascertain valid exist which the legitimate grounds upon of Santa Clara County could of the supervisors justify adoption ordinance. observed,
It has been on the related recently of control of subject can be little one obscenity, that “there doubt that elements major to or from the sense of contributing detracting is the and community moral aesthetic ... atmosphere prevails places. It can be public argued America crucial is more problem contemporary a declining than a amount of community decreasing (Clor, sense free speech.” and Free The Judicial Morality Expression: Public Search Principles (1977) 28 L.J. Hastings 1311-1312.) Reconciliation Nude as entertainment is the subject commercial local appropriate community so concern the “moral aesthetic in the manner viv affecting atmosphere” 426). idly described Sullivan in Cal.3d at Such by Justice Crownover concern, establishment, a food and community affecting beverage has by reflected in the adoption representatives been people’s Penal Code 318.5 and 318.6. This concern identified sections Legislature is not to the health environmental factors limited associated with bars or concern public fully equivalent restaurants. and meets the which is state interest” demanded “significant majority. My in a studied retreat from colleagues regrettably engage the well estab lished that a local in the exercise of community, principle police powers, consider “the interest in the may fully quality life and the (Paris total environment.” Adult Theatre I v. community Slaton 446, 457, 2628]; U.S. see Young Mini Theaters American
326-327, 2440].) Former 96 S.Ct. Chief Justice Earl Warren stressed the that the when he said law point fully recognizes same “the right and of the maintain a (Jacobellis Nation States decent . . . .” society 184, (1964) Ohio 1676] end, In furtherance this (dis. opn.).) legitimate representatives of the in the exercise of sovereign people, their police power, surely may consider the maintenance of a community moral tone as well as the of its commercial exploitation opportunities.
There is a element in this and missing dialogue, that is a that recognition there are degrees constitutionally protected communication. Speech, written, verbal, demonstrative, whether is entitled to First Amendment protection. Court has not recognized places food or serving beverages on-premises consumption, However, even if the “speech.” high tribunal had so held it does not fol low that such is thereby immunized from “speech” the exercise of a coun ty’s context, Within a regulatory police power. related Justice Stephens recently this emphasized principle following manner: graphic “Moreover even we though recognize First Amendment will not tolerate the total of erotic suppression materials that have some arguably value, artistic it is manifest that society’s interest this protecting type different, lesser, is of and expression wholly than magnitude the interest in untrammeled debate political inspired Voltaire’s immortal comment of what but I disapprove you say, will defend to the death your ['I right Theatres, v. American Mini say (Young supra, 427 it’].” 310, 326].) If a dancer has any First Amendment right clothes, her remove all of right one of “lesser magnitude” than that to defeat a local community’s exercise of required its police power and protection legitimate recognized social values.
There is another societal interest compelling fully supportive of the before us. This is the regulation belated but growing awareness of social harm from the sexual resulting exploitation and degradation of women for (See Sexual Bryant, Display Women’s profit. Bodies—A Violation Privacy 1227-1228; Golden Gate L.Rev. Brownmiller, Will, Men, Our Women and Against 390-396; Rape pp. see Dworkin, Men generally Pornography: Possessing (1981); Women Griffin, and Silence: Culture’s Pornography Revenge Against Nature action, in Back (1981); Taking Take the Night: Women on Pornography VI, edit. (Lederer 1980) 259-291.) pp. § observed, a recent commentator
As “As as the long sexes are divided by status, and women as a class are defined first and unequal primarily our the sexual commercialization of female sexuality, will be nudity an insult of all women.” dignity liberty L.Rev., Golden Gate 1227-1228.) The student author thoughtfully argues “The com- mercialization of our most exposure private sexual characteristics for *23 sex, of the is a gratification opposite grievous of an example assault on (Id., and and insult to a class of liberty privacy, people.” Crownover, As we noted in nude within dancing this context is a pure commercial “sales If gimmick.” substantial numbers of the citizenry, find the additionally, conduct cheapening, and demeaning degrading women the Santa Clara Board of County view, Supervisors, in my surely when, consider these factors matter, as a policy it weighs considerations of and public morality the general welfare some against ethereal constitutional right dance naked.
Other writers have that there suggested is a public safety factor that is area; in that the inherent this pornographic exposure display women’s additionally, bodies enhance the risks of may, assaults, rape, sexual and (Brownmiller, other sexual harrassment. 390-396; at pp. Research in Pornography, on Take Back the Women Night: Effects of IV, 185-238.) I Pornography, supra, do not know § whether there is correlation between statistical any and criminal assaultive behavior. I think it is sexual but possible, there perhaps is none. In any event, the board of could supervisors have reasonably considered this others, several in among possibility, adopting ordinance in question. I find singularly unpersuasive majority’s invocation of of the of the constitutionality Venus de display Milo. The ordinance in directed at waiters and in question entertainers establishments “which food or Its beverages.” bars, serve is live target entertainment in saloons restaurants, not and museums. The sculptures Louvre in Paris and the in San Jose are more separated by than Hiphugger geography. legitimate Given the various and compelling objections bodies, of the intimate commercial of women’s exposure parts it is clear the state and its local subdivisions have substantial and demonstrable the commercial interests regulating exploitation female nudity It nontheatrical and setting. legally constitutionally appropriate local welfare, communities conclude factors morality, general women, and health sensitivities and safety the “free outweigh clothes, of dancers to remove their if right any such constitutional speech” exists. right short,
In contrary there has been no majority, “later change decisions” Court. Several legitimate recognized public justify concerns amply support county which my *24 invalidate. Our Crownover rationale remains as unfortunately colleagues it was in 1973. today valid writ. deny
I would J., concurred.
Reynoso,