Dore, J.
This case examines the constitutionality of the City of Seattle's lewd conduct ordinance and that city's body studio ordinance. We affirm appellants' convictions under these statutes and, in so doing, find no constitutional infirmities.
Appellants are members and employees of the Venusian Church (Church). The philosophy of the Church centers on an individual's acceptance of his or her own sexuality, thereby discarding the repressions upon sex imposed by our contemporary society. The Church conducts retreats and seminars and operates the Temple of Venus (Temple) located at 1414 First Avenue in Seattle. The walls of the Temple foyer are covered with quotations and explanations of the philosophy of the Church. Past the foyer is another room where slides, movies, and an accompanying narration explain this philosophy and Church activities. Beyond is another room with booths for viewing films or slides. A further room contains a series of booths arranged on two sides of a bed. Once admitted to a booth, a patron deposits a Susan B. Anthony dollar into a coin box which raises a shade for 3 minutes revealing the performance area where [61]*61two or more adult nude people engage in a variety of sex acts ranging from gentle touching to sexual intercourse. Throughout this activity, a sound system "conveys by music and voice the idea that open sexuality is appropriate". Adjacent to the booths is another room with Church philosophy displayed on the walls.
All appellants but J. H. Gearon were charged by respondent City of Seattle (City) with lewd conduct under Seattle Criminal Code 12A.10.0701 (lewd conduct ordinance) and with being employed on the premises of a body studio in violation of Seattle Criminal Code 12A.10.0802 (body studio [62]*62ordinance). Gear on was charged with conducting a business on the premises of a body studio. Suffice it to say, without further elaboration, that the activities in view from the 3-minute-per-dollar booths were activities clearly prohibited by the lewd conduct ordinance. By its own terms, however, that ordinance does not apply to dramatic or artistic performances which take place in a theater or museum. Section 12A.10.070(D).
The municipal court granted the City's motion in limine, preventing appellants' witnesses from testifying that the activities engaged in were "communicative". All appellants were found guilty of the charges. Gearon was fined $500. The other seven appellants were given 30-day deferred suspended sentences. This appeal followed.
I
Lewd Conduct Ordinance
Appellants contend that the United States Constitution gives them the right to prove that their activity was communicative, thereby not obscene, and protected by the First Amendment. The grant of the motion in limine was, argue appellants, reversible error. When freedoms of speech and religion are affected, as appellants claim here, the State may regulate only upon a showing of a compelling State interest. United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). They argue that their evidence would have tended to negate the State's interest because it would have established that viewing their activities controlled by the lewd conduct ordinance (1) has no harmful effect, (2) would not lead to violence or other criminal acts, and (3) is actually beneficial. The assertion, taken as true, that the activities were not harmful but were beneficial to the viewers, has no bearing on our determina[63]*63tion. Such an argument could only tend to show that the lewd conduct ordinance is a bad or an unwise law. Such questions are inappropriate for a court to resolve. Seattle v. Buchanan, 90 Wn.2d 584, 584 P.2d 918 (1978).
As to the contention that the behavior was communicative, therefore not obscene and not subject to regulation, we refer to Buchanan where we upheld the constitutionality of this ordinance against an attack that it chilled First Amendment rights. Even if we were to assume that appellants' behavior is not obscene under the tests articulated in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973) and Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), we held in Buchanan that conduct related to expression may be regulated when nude exposure or explicit sexuality is involved. We recognize that in Buchanan no assertion had been made that expression was involved, as the appellants before us today argue. They distinguish Buchanan on this basis. However, in Buchanan an overbreadth challenge was made and rejected by this court.
A statute may not be drafted with so broad a sweep as to include in its prohibitions activities which are protected by the First Amendment. United States v. Robel, 389 U.S. 258, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967). If so drawn, a statute will be void even if the conduct actually regulated was not constitutionally protected. Kunz v. New York, 340 U.S. 290, 95 L. Ed. 280, 71 S. Ct. 312 (1951). In Buchanan, when faced with this challenge, we balanced the City's legitimate interest in maintaining public order and decency against the constitutional protection afforded to some nudity as a means of expression. We held that the lewd conduct ordinance did not violate the constitution because it affirmatively provided for artistic or dramatic performances as being exempt from its reach.
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 [64]*64expression, and in the absence of any showing that any person has a right to present a public theatrical production involving breast exposure outside a theatre or museum, we must reject the appellants' contentions that this ordinance prohibits constitutionally protected speech.
Buchanan, at 603.
Appellants also contend that they should have been allowed to present their evidence that the activities were "communicative" because, if so proven, the activities would have constituted an "artistic or dramatic" performance and would have been exempt from the lewd conduct ordinance. This argument was not raised below and we shall not consider it at this time. We note, however, that the pivotal question as to the applicability of the exemption is whether the performance takes place in a theater. If the place of performance is not a theater, the content of the behavior is irrelevant. The record indicates that the municipal court had determined as a fact that the Temple was not a theater. The court found that the performance area was a "bed". Appellants point to our definition of theater in Buchanan at page 596 — literally meaning "a place for seeing" — and argue that the Temple comes within that broad language. However, we limited that definition by specifying types of theaters as
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Dore, J.
This case examines the constitutionality of the City of Seattle's lewd conduct ordinance and that city's body studio ordinance. We affirm appellants' convictions under these statutes and, in so doing, find no constitutional infirmities.
Appellants are members and employees of the Venusian Church (Church). The philosophy of the Church centers on an individual's acceptance of his or her own sexuality, thereby discarding the repressions upon sex imposed by our contemporary society. The Church conducts retreats and seminars and operates the Temple of Venus (Temple) located at 1414 First Avenue in Seattle. The walls of the Temple foyer are covered with quotations and explanations of the philosophy of the Church. Past the foyer is another room where slides, movies, and an accompanying narration explain this philosophy and Church activities. Beyond is another room with booths for viewing films or slides. A further room contains a series of booths arranged on two sides of a bed. Once admitted to a booth, a patron deposits a Susan B. Anthony dollar into a coin box which raises a shade for 3 minutes revealing the performance area where [61]*61two or more adult nude people engage in a variety of sex acts ranging from gentle touching to sexual intercourse. Throughout this activity, a sound system "conveys by music and voice the idea that open sexuality is appropriate". Adjacent to the booths is another room with Church philosophy displayed on the walls.
All appellants but J. H. Gearon were charged by respondent City of Seattle (City) with lewd conduct under Seattle Criminal Code 12A.10.0701 (lewd conduct ordinance) and with being employed on the premises of a body studio in violation of Seattle Criminal Code 12A.10.0802 (body studio [62]*62ordinance). Gear on was charged with conducting a business on the premises of a body studio. Suffice it to say, without further elaboration, that the activities in view from the 3-minute-per-dollar booths were activities clearly prohibited by the lewd conduct ordinance. By its own terms, however, that ordinance does not apply to dramatic or artistic performances which take place in a theater or museum. Section 12A.10.070(D).
The municipal court granted the City's motion in limine, preventing appellants' witnesses from testifying that the activities engaged in were "communicative". All appellants were found guilty of the charges. Gearon was fined $500. The other seven appellants were given 30-day deferred suspended sentences. This appeal followed.
I
Lewd Conduct Ordinance
Appellants contend that the United States Constitution gives them the right to prove that their activity was communicative, thereby not obscene, and protected by the First Amendment. The grant of the motion in limine was, argue appellants, reversible error. When freedoms of speech and religion are affected, as appellants claim here, the State may regulate only upon a showing of a compelling State interest. United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). They argue that their evidence would have tended to negate the State's interest because it would have established that viewing their activities controlled by the lewd conduct ordinance (1) has no harmful effect, (2) would not lead to violence or other criminal acts, and (3) is actually beneficial. The assertion, taken as true, that the activities were not harmful but were beneficial to the viewers, has no bearing on our determina[63]*63tion. Such an argument could only tend to show that the lewd conduct ordinance is a bad or an unwise law. Such questions are inappropriate for a court to resolve. Seattle v. Buchanan, 90 Wn.2d 584, 584 P.2d 918 (1978).
As to the contention that the behavior was communicative, therefore not obscene and not subject to regulation, we refer to Buchanan where we upheld the constitutionality of this ordinance against an attack that it chilled First Amendment rights. Even if we were to assume that appellants' behavior is not obscene under the tests articulated in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973) and Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), we held in Buchanan that conduct related to expression may be regulated when nude exposure or explicit sexuality is involved. We recognize that in Buchanan no assertion had been made that expression was involved, as the appellants before us today argue. They distinguish Buchanan on this basis. However, in Buchanan an overbreadth challenge was made and rejected by this court.
A statute may not be drafted with so broad a sweep as to include in its prohibitions activities which are protected by the First Amendment. United States v. Robel, 389 U.S. 258, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967). If so drawn, a statute will be void even if the conduct actually regulated was not constitutionally protected. Kunz v. New York, 340 U.S. 290, 95 L. Ed. 280, 71 S. Ct. 312 (1951). In Buchanan, when faced with this challenge, we balanced the City's legitimate interest in maintaining public order and decency against the constitutional protection afforded to some nudity as a means of expression. We held that the lewd conduct ordinance did not violate the constitution because it affirmatively provided for artistic or dramatic performances as being exempt from its reach.
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 [64]*64expression, and in the absence of any showing that any person has a right to present a public theatrical production involving breast exposure outside a theatre or museum, we must reject the appellants' contentions that this ordinance prohibits constitutionally protected speech.
Buchanan, at 603.
Appellants also contend that they should have been allowed to present their evidence that the activities were "communicative" because, if so proven, the activities would have constituted an "artistic or dramatic" performance and would have been exempt from the lewd conduct ordinance. This argument was not raised below and we shall not consider it at this time. We note, however, that the pivotal question as to the applicability of the exemption is whether the performance takes place in a theater. If the place of performance is not a theater, the content of the behavior is irrelevant. The record indicates that the municipal court had determined as a fact that the Temple was not a theater. The court found that the performance area was a "bed". Appellants point to our definition of theater in Buchanan at page 596 — literally meaning "a place for seeing" — and argue that the Temple comes within that broad language. However, we limited that definition by specifying types of theaters as
playhouses, opera houses, motion picture theatres, drive-in theatres, ballet theatres, and puppet theatres, and even open air theatres.
Buchanan, at 596. Furthermore, we said that a "theatre" was limited "to buildings which are customarily used for artistic performances". Buchanan, at 600. The lower court's finding that the Temple is not a theater is supported by substantial evidence. In light of the record before us and our holding in Buchanan, we hold it was not error for the trial court to exclude evidence which may have shown that the defendants' conduct was "communicative".
[65]*65II
Body Studio Ordinance
Appellants assert that the body studio ordinance prevents all nude touching and is, therefore, overbroad. When these activities are performed as part of a legitimate expression of ideas in a theater, they cannot be regulated. The body studio ordinance purports to do so, chilling First Amendment expression and rendering the ordinance void.
The City contends that the ordinance is only intended to apply to those places where the principal activity provided, in exchange for taking the fee, is the touching, handling, etc. Where the prohibited activity is only incidental to other protected forms of expression, the ordinance does not apply. Legitimate artistic or dramatic performances are thereby excluded from the reach of the statute.
The language of the body studio ordinance does not limit its reach. Appellants are correct that, if literally applied, legitimate means of expression would be controlled in violation of the First Amendment. However, a limiting construction by the courts will save a statute from an over-breadth challenge. Erznoznik v. Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975). The municipal court adopted such a saving construction, as reflected in its memorandum opinion.
The essence of the offense is the business of touching/ viewing for a fee.
Does this ordinance sweep within its prohibitions protected first amendment activity? As argued by defendants, the ordinance, literally read, could be said to apply to a dramatic production where two or more actors held hands before a paying audience. This is not a reasonable application of its terms. No reasonable person reading the terms "body painting studio", "model studio", "sensitivity awareness studio", and "paint, massage, feel, handle, or touch the unclothed body” could conclude that it related to a dramatic production. Many plays and ballet performances involve much touching but the drama and the dance are central to the performance. The touching is incidental. "The statute must be given a reasonable construction to avoid absurd consequences",
[66]*66State v. Cann, 92 Wn.2d 193 (1979).
The court finds that 12A.12.160 by its own terms does not apply to any protected expression.
We adopt this limiting construction and, therefore, find no constitutionally overbroad language such that protected conduct or speech is regulated.
All convictions are affirmed.
Rosellini, Williams, and Dimmick, JJ., concur.
Dolliver, J., concurs in the result.