City of Seattle v. Buchanan

584 P.2d 918, 90 Wash. 2d 584, 1978 Wash. LEXIS 1112

• Court: Washington Supreme Court
• Decided: September 28, 1978
• Docket: 44199
• Status: Published

Opinions

Rosellini, J.

The five appellants were convicted in Municipal Court of violations of Seattle ordinance No. 102843, section 12A.12.150, defining as "lewd conduct" and making unlawful the public exposure of one's genitals or female breasts. They were each fined $100. The unchallenged findings show that the appellants were arrested in the Seattle Arboretum, where they were swimming and sunbathing with their breasts completely exposed. Two of them stood and tossed a "Frisbee" at some time during the period of exposure. The appellants were not engaged in any expressive or communicative activity. According to the evidence introduced on appeal to the Superior Court, the arrests had been made in response to several citizen complaints.

Rejecting contentions that the ordinance in question violates Const, art. 31 (amendment 61) (the equal rights amendment), as well as federal and state due process, equal protection, and freedom of expression and speech provisions, the Superior Court affirmed the convictions. These contentions are renewed on this appeal.

Const. art. 31, § 1, provides: "Equality of rights and responsibility under the law shall not be denied or abridged on account of sex."

Thus far, we have had only one occasion to examine this provision.¹ In Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975), two young women challenged a refusal to allow them to play football on the high school team, which refusal was grounded upon a rule promulgated by a statewide association of secondary schools. The plaintiffs' evidence showed that the young women were physically capable of playing on the team, met the team requirements, and had the permission of the school district. Against the argument that the rule was justified because most girls are incapable of meeting such requirements, this court held that it was unconstitutional as applied to the plaintiffs. The gist of the holding of the case was that eligibility must be determined on individualized characteristics, at least where equal access to sports programs is not made available to both sexes, and in the absence of a showing that the rule in question serves a rational purpose based upon actual differences which are present in every member of the particular sex.

The appellants do not deny the right of a municipal legislative body to enact laws for the protection of the public peace, order and morals. They concede that a legislative body may enact laws which apply only to the members of one sex, provided that they are based on actual differences between the sexes. They give as an example the role of childbearing, and state that the legislature could constitutionally pay a bonus to a woman who, during a given period of time, gave birth to (or refrained from giving birth to) a child. However, they contend that a law which provided a bonus to women for childrearing, and did not provide it to men, would be invalid, because men are equally capable of rearing children "beyond the short period of breastfeeding. "

Their contention here is that there is no difference in appearance between the breasts of men and women sufficient to justify a law forbidding the exposure of the breasts of one and not the other, their assumption being that it is only the size or shape of women's breasts which inspired the ordinance in question.

At the trial, the appellants offered testimony of a physician, Dr. Charles Cowan, who said that there is no difference in the composition of the flesh of male and female breasts; that the breasts do not form a primary sex characteristic but a secondary one, and that the degree of development of the breasts does not determine sex. He said, in clarification of this latter testimony, that some men have breasts as large as those of some small-breasted women.²

The doctor was not asked and did not say whether there is any difference in function between the male and female breasts, and we see that the appellants agree that there is such a difference. They give it no weight, however, evidently because, as they view the legislative intent, function is not an element which the legislative body had in mind when it forbade the public exposure of female breasts.

We are unable to agree that the legislative body could only have been interested in the size or shape of female breasts when it included them among the parts of the human body which should not be exposed in public. It is manifest from a reading of the section as a whole³ that the City Council was concerned with those body parts and functions which, according to society's common sense of decency, should be kept private. These include the eliminative functions and the procreative functions. With respect to the latter, it was found to be in the public interest to order concealed, in addition to the genitals, the female breasts, which, unlike male breasts, constitute an erogenous zone and are commonly associated with sexual arousal.⁴ The lawmakers no doubt took account of the fact that the breasts can be kept covered in public without inconvenience, since they perform no function which necessitates their being exposed to public view.

When the legislative intent is viewed in light of the obvious purpose of the ordinance — to protect the public morals and its concern for the privacy of intimate functions— common knowledge tells us, as it undoubtedly told the trial judge, that there is a real difference between the sexes with respect to breasts, which is reasonably related to the preservation of public decorum and morals. Governmental bodies have a right to enact laws to maintain a decent society. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973); Seattle v. Marshall, 83 Wn.2d 665, 670, 521 P.2d 693 (1974).

We are told that concepts of morality and propriety are changing, and that public exposure of the female breasts is becoming increasingly less offensive. This may be the case, even though we are given no evidence to support the assertion, and it is obvious that in this instance, some persons were offended. If it is true, then it can reasonably be expected that public demand will soon make it imperative that this portion of the ordinance be repealed. Suffice it to say that the argument attacks the wisdom and necessity of the ordinance, matters which the courts lack the constitutional authority to decide.

The Supreme Court of the United States in Goesaert v. Cleary, 335 U.S. 464, 466, 93 L. Ed. 163, 69 S. Ct. 198 (1948), said:

The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.

We cannot perceive that the privilege sought here is one which involves any serious interest of the appellants. It does not fall within their rights of expression, religion, petition, political action, or association, or their right to privacy, or within any marital, familial, educational (as in Darrin v. Gould, supra), occupational, property, economic or social interest of theirs. It is not shown that the right is one which women generally demand or even wish to. enjoy. On the other hand, the right of the public, including women, to enact laws which tend to preserve the public peace and decorum (without at the same time interfering with the exercise of protected liberties) would be seriously curtailed were we to hold that the equal rights amendment forbids laws such as the ordinance we have before us. To do so would lend validity to the objections voiced by opponents of the amendment, and weaken public confidence in its beneficence.

The leading law review article pertaining to the proposed federal amendment recognizes that it is not intended or designed to strike down laws which are based upon actual differences in the sexes. See Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 893 (1971). Records of the United States House of Representatives and the Washington State Senate reveal the same understanding. See House of Representatives Report No. 92-359, 92nd Cong., 1st Sess. (1971), and Senate Journal, 42d Legislature (1972), at 345-46. The Yale Law Review writers also make clear their understanding that the provision is designed to protect the substantial rights of women. We share that understanding of its purpose and see no good reason to subvert it by using article 31 as a vehicle to thwart the public will on matters which the people deem to be in their best interest and which require only inconsequential sacrifices from the individual, where there is an actual difference between the sexes, to which the law reasonably relates.

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

The theory is advanced that this ordinance denies the equal protection of the laws to the appellants. We have already shown that the law does not classify or discriminate on the basis of sex.

In Hanson v. Hutt, 83 Wn.2d 195, 517 P.2d 599 (1973), we held that a statute which denied unemployment benefits to pregnant women constituted a discriminatory classification based on sex and not on actual difference between the sexes. We found the classification to be suspect and therefore subject to the strict scrutiny test. Applying that test, we found that the purpose of the law in question — which was to provide benefits only to those able and willing to work — did not require denial of benefits to pregnant women, since pregnant women are generally not disabled. Since no compelling state interest was served by this classification, it was invalid under the equal protection clauses of the federal and state constitutions.

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

It is next suggested that the ordinance offends the due process clause of the fourteenth amendment to the United States Constitution because it is overbroad. Two cases are cited in support of this theory. In Cleveland Bd. of Educ. v. LaFleur and Cohen v. Chesterfield County School Bd., 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974), the United States Supreme Court struck down school board regulations which dictated mandatory maternity leave several months before the end of a teacher's pregnancy. Citing its precedents which had held that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause of the Fourteenth Amendment, the court found that the rule, which was applied regardless of an individual teacher's physical ability to continue teaching after the termination date, unnecessarily dampened the exercise of that liberty by discouraging decisions to bear children.

In Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972), the remaining case relied upon, a statute forbidding certain kinds of speech described therein, was struck down because it could be applied to constitutionally protected speech. The defendant was allowed to challenge the constitutionality of the statute, even though his own speech was characterized as "fighting words," for which he could not claim First and Fourteenth Amendment protection.

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

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

The appellants propose five hypothetical situations, in some of which the ordinance might be of doubtful application.⁵ It is not claimed that any of these involves the exercise of a constitutional right. A criminal law is not rendered unconstitutional by the fact that its application may be uncertain in exceptional cases, as long as the general area of conduct against which it is directed is made plain. Hygrade Provision Co., Inc. v. Sherman, 266 U.S. 497, 69 L. Ed. 402, 45 S. Ct. 141 (1925); 21 Am. Jur. 2d Criminal Law § 17, at 100 (1965).

Should a court be called upon to apply the law in one of the hypothesized situations, it would be guided by principles of statutory construction which should enable it to correctly decide whether the particular exposure falls within the prohibition of the ordinance. Two examples are: (1) Courts are obliged to read a statute in the '"animating context of well-defined usage'". State v. Dixon, 78 Wn.2d 796, 805, 479 P.2d 931 (1971), quoting from Beauharnais v. Illinois, 343 U.S. 250, 253, 96 L. Ed. 919, 72 S. Ct. 725 (1952). (2) Criminal statutes should be strictly construed in favor of the defendant. State v. Bell, 83 Wn.2d 383, 518 P.2d 696 (1974). These two alone should resolve any ambiguity in the word "exposure" and "female breasts" should a doubtful case arise.

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

There is cited no authority to support the appellants' claim of a right to present a theatrical production in the arboretum. The arboretum, which belongs in part to the City of Seattle and in part to the University of Washington, is maintained by agreement between those two bodies as an arboretum and botanical garden, to which the public is freely admitted for the purpose of enjoying the display of trees and plants which are grown there. By statute, that portion of the arboretum which belongs to the university is to be used for arboretum and botanical garden purposes only. RCW 28B.20.350. If there is any provision, by city ordinance, regulation, agreement, or otherwise, which permits the presentation of theatrical productions in this very specialized park, it has not been called to our attention and we have been unable to uncover it.

The only other public place suggested by the appellants (not coming within the ordinary definition of a "theatre" or "museum") in which they might have a right to expose their breasts in an expressive or communicative performance is the public street. The authority which they cite for the assertion of this right is Schacht v. United States, 398 U.S. 58, 26 L. Ed. 2d 44, 90 S. Ct. 1555 (1970). In that case, the petitioner had worn parts of a United States military uniform while performing in a skit, featured in an anti-war demonstration and designed to create in the audience an understanding of and opposition to United States participation in the Vietnam war. The issue in the case was whether the petitioner had violated a federal statute making it an offense to wear a military uniform without authority. The Supreme Court found that the skit in which the petitioner performed was a "theatrical production” within the meaning of a statute which permitted the wearing of the uniform in such productions if the portrayal did not discredit the armed forces. While the court took account of the fact that theatrical productions need not always be performed in buildings or even on a defined area such as a conventional stage, it did not have before it the question whether the demonstrators had a constitutional right to stage a theatrical production in the street. It was not suggested in the case that the demonstration was unlawful or that the demonstrators did not have a right to perform the skit as a part of it.

That case, turning as it does on a question of statutory interpretation, hardly stands for the proposition that topless theatrical or terpsichorean performances can be presented in the street, as a matter of constitutional right.

Not only have the appellants failed to establish that they have a right to expose their breasts in the arboretum or in the streets in a theatrical production, but they have offered no authority for the proposition that they have a right to engage in such activities in public places other than those expressly exempted under the act. The word "theatre" is not one of narrow meaning. See Webster's Third International Dictionary 2369 (1968); 4 Am. Jur. 2d Amusements and Exhibitions § 2 (1962). The encyclopedia states that the word, from the Greek, means literally "a place for seeing." Theatres are of various kinds. There are playhouses, opera houses, motion picture theatres, drive-in theatres, ballet theatres, and puppet theatres, and even open air theatres. We may take judicial notice that Seattle's Woodland Park has such a theatre. Thus the ordinance makes ample allowance for nude expression in appropriate places. We are not shown that it was required to permit such expression in its streets, parks, or other public places.

Those cases in which the United States Supreme Court has given its opinion upon the right to expose the female breasts as an incident to the constitutionally protected expression of ideas have not gone so far as to countenance the notion that such exposure may be made in any public place which a defendant chooses. Rather they have either expressly or tacitly acknowledged that such exposure is subject to reasonable regulation, even when it is done as an incident to that expression which is protected by the First Amendment.

In California v. LaRue, 409 U.S. 109, 117-18, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972), the United States Supreme Court sustained California liquor regulations which forbade explicitly sexual entertainment in places where intoxicating beverages were sold. Mr. Justice Rehnquist, speaking for the majority of the court, after recognizing the principle that an actor in a theatrical production is entitled to the constitutional right of freedom of speech, said:

But as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. States may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of "conduct" or "action," [citing cases]. In [United States v.] O'Brien, supra [391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968)], the Court suggested that the extent to which "conduct" was protected by the First Amendment depended on the presence of a "communicative element," and stated:

"We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 391 U.S., at 376.

This court applied this principle in Seattle v. Hinkley, 83 Wn.2d 205, 517 P.2d 592 (1973), where we upheld an ordinance regulating the dress of female employees in bars, in the face of a contention that the ordinance curtailed the women's right of free speech.

The opinion in California v. LaRue, supra, was written by Mr. Justice Rehnquist. Dictum from that case was used by the same justice in writing the opinion in a subsequent case to support a conclusion that an ordinance prohibiting any female from appearing in any public place with uncovered breasts was vulnerable to a claim of unconstitutional overbreadth. Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975). This case, while relevant, was not cited by the parties.

The ordinance under consideration there made no allowance at all for artistic performances. For this reason, the Supreme Court found it overbroad. The court did not find it necessary to define the circumstances or to designate the places in which breast exposure would be entitled to constitutional protection, deeming it sufficient to adopt the federal district court's suggestion that a performance of the "Ballet Africains" (presumably in a theatre) would come within its ambit.

The opinion's brief discussion of the issue of overbreadth does, however, throw some light on the question. Its conclusion is based upon the dictum in California v. LaRue, supra, where the same author noted that the court had held that both motion pictures and theatrical productions are within the protection of the First and Fourteenth Amendments. The writer contrasted the bar room performances validly forbidden under the California statute with a performance by a scantily clad ballet troupe in a theatre. And when he came to distinguish the ordinance in Doran v. Salem Inn, Inc., supra, he did so on the ground that it applied "not merely to places which serve liquor, but to many other establishments as well." If the two cases are read together, along with the cases cited in California v. LaRue, supra, the conclusion is inescapable that when the court has spoken of constitutional protection for nudity or semi-nudity as a means of expression, it has had reference to artistic performances in a theatre of some kind.

It is hardly conceivable that the court meant to suggest, in Doran v. Salem Inn, Inc., supra at 933, that such performances may be given as a matter of right in all of the public places which the district court had noted were covered by the ordinance, in a paragraph quoted in the Supreme Court's opinion. The district court had said:

"The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in 'any public place' with uncovered breasts. There is no limit to the interpretation of the term 'any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the "Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance." 364 F. Supp., at 483.

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

In Groyned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), the high court upheld an anti-noise ordinance, as against a contention that its terms were broad enough to prohibit constitutionally protected speech, noting that the only speech which it would prohibit was that which was disruptive. Citing Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969), the court said that the public sidewalk adjacent to a schoolhouse may not be declared off limits for expressive activity; but in each case expressive activity may be prohibited if it materially disrupts classwork or involves substantial disorder or invasion of the rights of others.

In Police Dep't v. Mosley, 408 U.S. 92, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972), the Supreme Court, while holding that the particular picketing ordinance involved made impermissible distinctions between peaceful labor picketing and other picketing, said that the court had continually recognized that reasonable "time, place and manner" regulations of picketing may be necessary to further significant governmental interests. And in Grayned the court said that the nature of a place and the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.

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

Since the ordinance here specifically makes allowance for artistic performances in appropriate establishments, it is not open to the criticism which caused the court to strike down the ordinance in Doran v. Salem Inn, Inc., supra.

Another case relied upon, Erznoznik v. Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975), in fact supports the validity of the ordinance here. In that case, a city ordinance prohibiting the showing of any motion picture film depicting nudity in a drive-in theatre was declared invalid. It was conceded by the city that the prohibition was broad enough to include constitutionally protected films. It was nevertheless argued that any film containing nudity, which could be viewed from a public place, was suppressible as a nuisance. The court denied this contention, holding that the ordinance discriminated against movies solely on the basis of content, as a result of which drive-in theatres were discouraged from showing movies containing any nudity, however innocent or even educational. The footnote to that holding makes it plain that the court did not intend its ruling to apply to ordinances prohibiting public nudity. The court said, at page 211 n.7:

Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. See Miller v. California, 413 U. S. 15, 24 [37 L. Ed. 2d 419, 93 S. Ct. 2607] (1973); Kois v. Wisconsin, 408 U. S. 229 [33 L. Ed. 2d 312, 92 S. Ct. 2245] (1972). In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws. See Roth v. United States, 354 U. S. 476, 512 [1 L. Ed. 2d 1498, 77 S. Ct. 1304] (1957) (Douglas, J., dissenting) ("No one would suggest that the First Amendment permits nudity in public places"). Cf. United States v. O'Brien, 391 U. S. 367 [20 L. Ed. 2d 672, 88 S. Ct. 1673] (1968).

Not only did the court expressly distinguish indecent exposure laws, but the case dealt with a restriction on the showing of motion pictures, a medium of First Amendment expression, in a theatre. Like Doran v. Salem Inn, Inc., supra, it does not support the contention that the ordinance here is overbroad.

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

All of the cited cases involved statutes or ordinances which regulated activities which enjoy First or Fourteenth Amendment protection.⁶ In most of these cases the person challenging the constitutionality of the enactment was one who was himself claiming that his constitutional right was infringed. However, in Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972), in Lewis v. New Orleans, 415 U.S. 130, 39 L. Ed. 2d 214, 94 S. Ct. 970 (1974), and in Plummer v. Columbus, 414 U.S. 2, 38 L. Ed. 2d 3, 94 S. Ct. 17 (1973), the United States Supreme Court held that laws prohibiting certain speech could be challenged by the defendants, even though their own conduct was not protected, because the language of the laws in question covered constitutionally protected speech as well as speech which could, properly, be punished. It is at once apparent that the court in these cases was concerned with laws which directly pertained to speech, an expressly protected activity. See also Grayned v. Rockford, supra; cf. Doran v. Salem Inn, Inc., supra.

The Seattle ordinance does not purport to regulate speech, but rather regulates conduct. That such conduct might, in a given context, be found to be so connected with the expression of ideas as to be included within the constitutional protection, does not convert the ordinance from one regulating conduct to one regulating speech. None of the authorities cited by the appellants go so far as they would have the court go in this case. The Supreme Court expressly recognizes that there is a difference between statutes regulating conduct and those regulating speech and has said, in United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), that not every form of conduct must be treated as protected speech, for

[w]hen "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.

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

The appellants next argue that the conduct prohibited here was not obscene, as that word has been defined by the United States Supreme Court, and cite a number of cases which have held that the expression of ideas cannot be forbidden on the ground that the material is offensive, unless it is in fact obscene. Since there is no contention here that the appellants were engaged in any kind of communicative or expressive activity, these cases have no application.

The appellants further argue that their conduct was not lewd, within the common-law meaning of that word. The legislative body included the "intentional exposure of female breasts" within its definition of "lewd conduct." The general rule is that the legislature may define a word, giving it a broader meaning than its ordinary meaning. 1A C. Sands, Statutes and Statutory Construction § 20.08 (4th ed. 1972); 73 Am. Jur. 2d Statutes § 224 (1974).

We have recognized this rule many times. Among the cases are Publishers Forest Prods. Co. v. State, 81 Wn.2d 814, 505 P.2d 453 (1973); Garrison v. State Nursing Bd., 87 Wn.2d 195, 550 P.2d 7 (1976); and State v. Roadhs, 71 Wn.2d 705, 430 P.2d 586 (1967).

The validity of legislative definitions is a question which usually arises in the context of statutory interpretation. See 1A. C. Sands, Statutes and Statutory Construction §§ 20.08, 27.02 (4th ed. rev. 1972), and 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. rev. 1973). There is no ambiguity in the law before us, nor is it contended that any such exists. Looking at the ordinance as a whole, it is evident that one of the purposes of the adoption of section 12A.12.150 was to correct the ambiguity which characterized its predecessor, which read:

It is unlawful for any person to appear in a state of nudity, or in any indecent or lewd dress, or make any indecent exposure of his person, or to expose his private parts to public, view, or be guilty of any lewd act or behavior in any place exposed to public view. (Ord. 16046 § 21; May 23, 1907) [§ 12.11.220.]

It will be seen that the prior law, having no statutory definition of the words "nudity," "lewd," "indecent," and "lewd acts or behavior," was open to a charge of vagueness. Obviously it was not distinguished by the definiteness which the United States Supreme Court has said is necessary in a criminal law.⁷ United States v. Sullivan, 332 U.S. 689, 92 L. Ed. 297, 68 S. Ct. 331 (1948). We have adhered to that principle. In State v. Martinez, 85 Wn.2d 671, 538 (1975), we found an ordinance which failed to define "loitering" void for vagueness. We said there that the due process clause requires that citizens be given fair notice of what is forbidden.

It is not suggested that section 12A.12.150 falls short of that requirement. Rather the contention is that the coverage of the statute is so broad that it includes conduct which does not come within the common-law meaning of the word "lewd." In other words, the appellants would have the court require the legislative body to define its terms, when enacting a law but at the same time restrict the definition to that which the court would adopt, were it to enact the statute. No authority is cited for such a proposition, and we think it contrary to the fundamental principle that the power to define criminal offenses resides in the legislative branch. 22 C.J.S. Criminal Law §§ 11, 15 (1961); 21 Am. Jur. 2d Criminal Law § 14 (1965). Where the legislature has defined an offense, its definition supersedes the common law. State v. Benson, 144 Wash. 170, 257 P. 236 (1927).

The fact that the legislative body may conceivably have been somewhat harsh in characterizing the conduct which it saw fit to proscribe as lewd rather than merely indecent, does not erase the fact that the conduct itself is described with sufficient clarity to give fair warning of what is forbidden. That is the description which due process requires. State v. Galbreath, 69 Wn.2d 664, 419 P.2d 800 (1966).

Of course, a legislative definition may be so arbitrary that it operates to deny constitutional rights or otherwise run afoul of constitutional prohibitions. As the Supreme Court of Errors of Connecticut said in United Interchange, Inc. v. Spellacy, 144 Conn. 647, 136 A.2d 801 (1957), the rule does not prevent a court, when the constitutionality of a statute is attacked, from examining the act to see whether it logically and fairly describes that which it purports to define. There the legislative body included, within the definition of "real estate business," the business of publishing a paper which specialized in real estate advertising, in order to subject it to requirements which were legitimately imposed upon real estate brokers and salesmen but bore no reasonable relation to the publishing business. The court held that the attempt to impose such onerous and irrational burdens upon a legitimate business violated the constitutional requirements of due process and equal protection of the laws.

In Central Television Serv., Inc. v. Isaacs, 27 Ill. 2d 420, 189 N.E.2d 333 (1963), a legislative classification of television repairmen as "retailers of parts," for the purpose of imposing a retail sales tax upon their activities, which tax was not imposed upon repairmen generally, was held unconstitutional as violative of the requirement that taxes be uniform as to the class upon which it operates.

It will be seen that in these cases, the courts struck down legislative definitions which resulted in the imposition of burdens which could not have been imposed had the activities in question been correctly defined. We have, by dictum, taken note of the principle involved, in State v. Zornes, 78 Wn.2d 9, 20, 475 P.2d 109 (1970), where we said:

It is doubtful whether a legislative declaration contrary to all the evidence can be sustained as constitutional, if its effect is to deny to a defendant equal treatment under the law.

There is no suggestion here that the City was without power to punish the conduct of which the appellants were found guilty, or that, by defining it as lewd, the council attempted to impose upon it a punishment which could not otherwise have been prescribed.

In another case, People v. Smith, 246 Mich. 393, 224 N.W. 402 (1929), the legislature had passed an act which, according to its title, was designed to define and punish the crime of pandering. A challenge to the statute was waged upon the ground that the title was too narrow to include all of the conduct proscribed in the act. The court found that the word pandering was one of narrow meaning, within the common understanding. Therefore, it held, the title was not sufficient to meet the constitutional requirement that the subject matter of a bill be embraced within it.

The principle involved in that case has no application here. Const, art. 2, § 19, applies only to the legislature, and it is not contended otherwise.

In any event, the conduct described in the Seattle ordinance is within the ordinary meaning of the word "lewd." The word necessarily invites subjective evaluation. What to one person may be lewd may be to another entirely innocent. That appears to be the reason that the legislative body here did not see fit to leave to judicial definition the conduct forbidden.

Webster's Third New International Dictionary 1301 (1966) gives the following definition:

a : sexually unchaste or licentious: Dissolute, Lascivious b : suggestive of or tending to moral looseness : inciting to sensual desire or imagination : Indecent, Obscene, Salacious (moralists looked upon it as a lewd distraction — Lewis Mumford) (loud, lewd dissonances from the . . . orchestra in the pit — Time) (the hawk stood . . . with his lewd purple tongue lolling from his open beak— Liam O'Flaherty)

Among the definitions are "suggestive of or tending to moral looseness — ihciting to sensual desire or imagination." The appellants' conduct can be fitted into these descriptions, even though many persons, including some judges, might find their conduct neither suggestive nor inciting. It is enough to say that the legislative body of the City of Seattle determined that a sufficient number of citizens would find the exposure of female breasts to be lewd, within the broad definition of the word, to warrant its prohibition for the preservation of the public morals, peace and good order.

We are not faced with the necessity of construing the intent of the legislative body when it used the word "lewd." It has defined the word for us. Accordingly, cases cited by the appellants, in which courts have been called upon to interpret the legislative intent with respect to the word where no statutory definition is provided, are not determinative. In such cases, the courts naturally give the law in question a strict construction in favor of the accused, in compliance with the established doctrine.

Cases which the appellants cite interpreting statutes which use the word "lewd" without defining it are therefore not in point. In re Smith, 7 Cal. 3d 362, 497 P.2d 807, 102 Cal. Rptr. 335 (1972), Wainwright v. Procunier, 446 F.2d 757 (9th Cir. 1971), and In re Giannini, 69 Cal. 2d 563, 446 P.2d 535, 72 Cal. Rptr. 655 (1968), all involved the interpretation of California Penal Code § 314, which punished "wilful and lewd exposure." People v. Gilbert, 72 Misc. 2d 75, 338 N.Y.S.2d 457 (N.Y. City Crim. Ct. 1972), also involved a statute punishing any person who "wilfully and lewdly exposes his person ..." Unlike those statutes, the Seattle ordinance under consideration here does not make lewdness a separate element of the offense. Rather, it defines as lewd the intentional exposure of one's female breasts in public.

Of greater relevance here is the fact that in the sequel to the New York case, People v. Gilbert, 72 Misc. 2d 795, 339 N.Y.S.2d 743 (N.Y. City Crim. Ct. 1973), the same judge held that the offense of "exposure of the female" was an offense included within the greater offense of "public lewdness" and sustained the defendant's conviction upon this count. The defendant in that case had exposed her entire body on a public beach but had not made any lewd gestures or movements. "Exposure of the female" as defined by the New York law was the intentional exposure of female breasts. As the court construed these two laws, they forbade the mere exposure of female breasts, but did not forbid exposure of the genitals of either male or female unless the exposure was accompanied by lewd gestures or movements. Recognizing the anomalous result of his interpretation, the judge suggested that the legislature might see fit to correct it.

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

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

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

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

Wright, C.J., and Hamilton, Stafford, and Hicks, JJ., concur.

1 The provision has been considered by the Court of Appeals in the following cases, none of which was concerned with an issue similar to that presented in this case: In re Hauser, 15 Wn. App. 231, 548 P.2d 333 (1976) (Division One); Smith v. Smith, 13 Wn. App. 381, 534 P.2d 1033 (1975) (Division One); Singer v. Hara, 11 Wn. App. 247, 522 P.2d 1187 (1974) (Division One).

2 Dr. Cowan's testimony is fortified in the appellants' brief by a letter appended thereto from another physician, Dr. Bruce Steir, which the respondent justifiably asks us to strike. The letter adds nothing of substance to the testimony of Dr. Cowan, the correctness of which we have no reason to doubt. We note with interest that Dr. Steir, in elaborating upon the phenomena that the breasts of some men develop to a size at which they are comparable to those of women with small breasts, explains that such development is usually the result of some endocrine or other disorder. Since the doctors' evidence tells only part of the story, and a part which we do not find determinative of the issue before us, we need not consider the legal impact of a similarity which results only from some physical malfunction in one of the sexes.

3 "Section 12A.12.150 Lewd Conduct

"(1) As used in this section a 'lewd act' is:

"(a) an exposure of one's genitals or female breasts;

"(b) the touching, caressing or fondling of the genitals or female breasts; or

"(c) sexual intercourse as defined in Section 12A.04.140(l)(c); or "(d) masturbation; or

"(e) urination or defecation in a place other than a washroom or toilet room.

" (2) A person is guilty of lewd conduct if he intentionally performs any lewd act in a public place or at a place and under circumstances where such act could be observed by any member of the public.

"(a) 'Public place' has the meaning defined in section 12A.12.020(l)(a).

"(3) The owner, manager or operator of premises open to the public wherein alcoholic beverages are sold, served or consumed is guilty of permitting lewd conduct if he intentionally permits or causes any lewd act on said premises.

"(4) This section shall not be applied to artistic or dramatic performances in a theatre or a museum." Seattle ordinance No. 102843.

4 To illustrate the viability of the association of female breasts with sexual arousal, despite changing tastes and mores, we note the following which appeared in the Seattle-Post Intelligencer, August 9, 1977, § B, at 1, written by Emmett Watson:

The Big eyeballing attraction during the hydro races — which even diverted some attention from the Blue Angels — was a dinghy carrying four topless girls — propelled mostly, it seemed, by the hot breath of male onlookers,

and from the Seattle-Post Intelligencer, August 10, 1977, § B, at 5:

An Atlanta, Ga., ordinance requires shops to draw their blinds when the cloth[e]s on female window dummies are being changed. Understand it was passed as a result of a few traffic accidents.

5 "(1) A woman publicly nurses her baby;

" (2) A 10-year-old girl runs through the park wearing only cut-offs;

" (3) A woman strolls in a supermarket wearing a very scant bikini, which does, however, cover her nipples;

" (4) A woman goes to the theatre in a very fashionable dress which is constructed of tranggsaant material in the bodice and cut in such a way that from some angles one can see her breasts entirely; and

"(5) A woman reagoves her bathing suit on a public beach, waves at passing boats, slowly applies fentan lotion to the frontal portions of her body, and sunbathes with her knees 12 to 18 inches apart. Held: No lewd conduct. People v. Gilbert, 72 Misc. 2d 795, 339 N.Y.S.2d 743 (N.Y. City Crim. Ct. 1973)." Appellants brief, at 21.

6 Speech: Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894 (1949); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 96 L. Ed. 1098, 72 S. Ct. 777 (1952); Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957); Cox v. Louisiana, 379 U.S. 536, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965); Redrup v. New York, 386 U.S. 767, 18 L. Ed. 2d 515, 87 S. Ct. 1414 (1967); Bachellar v. Maryland, 397 U.S. 564, 25 L. Ed. 2d 570, 90 S. Ct. 1312 (1970); Schacht v. United States, 398 U.S. 58, 26 L. Ed. 2d 44, 90 S. Ct. 1555 (1970); Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972); Miller v.. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); Hess v. Indiana, 414 U.S. 105, 38 L. Ed. 2d 303, 94 S. Ct. 326 (1973); Cohen v. Chesterfield County School Bd., 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974); Lewis v. New Orleans, 415 U.S. 130, 39 L. Ed. 2d 214, 94 S. Ct. 970 (1974); Jenkins v. Georgia, 418 U.S. 153, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974); Erznoznik v. Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975); Political Expression and Association: NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963); Dombrowski v. Pfister, 380 U.S. 479,14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965); Assembly: Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971); Cox v. Louisiana, supra; Speech and Association: Baggett v. Bullitt, 377 U.S. 360, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964).

The Supreme Court went beyond its prior holdings in Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975), in granting standing to parties whose constitutional rights were not involved, since the ordinance did not purport to regulate speech, or any other First Amendment rights. The only case which the Court cited in support of its grant of standing was Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). That case involved an anti-noise ordinance which prohibited a person on grounds adjacent to a school building from willfully making a noise or diversion that disturbed or tended to disturb the peace or good order of the school session. The ordinance, although it regulated speech, was upheld.

Unfortunately, the Court in Doran v. Salem Inn, Inc., supra, did not take note of the fact that the ordinance did not purport to regulate speech .or other protected conduct, and that those cases which had previously allowed a challenge by a person whose own conduct was not protected involved regulations of that nature'. From a reading of the opinion, one cannot ascertain whether the departure from the normal practice was intentional or inadvertent.

7 It is of interest that the ordinance in which this section appears was adopted for the express purpose, among others, of clarifying the law pertaining to criminal conduct. The preamble to ordinance 102843 reads:

Whereas, existing criminal ordinances of The City of Seattle are in part obsolete, duplicative, incomplete and inconsistent with modern sociological needs; and

Whereas, it is necessary to provide a modem, fair, understandable, comprehensive and effective criminal code; and

Whereas, it is desirable to remove certain regulatory measures from the field of municipal criminal law and to distinguish between crimes and non-criminal violations of municipal law; and

Whereas, the Seattle-King County Bar Association has, pursuant to an agreement with the City of Seattle authorized in Ordinance 99482, completed a revision of the criminal code and the Seattle City Council has considered said revision and being fully advised . . .