People v. Nixon

Appellate Terms of the Supreme Court of New York

People v. Nixon

88 Misc. 2d 913, 390 N.Y.S.2d 518, 1976 N.Y. Misc. LEXIS 2773

Appellate Terms of the Supreme Court of New York·Decided November 29, 1976·Published·Cited by 10 cases

Opinion

Memorandum. The orders should be affirmed.

In our opinion section 40-1 of the Yonkers City Code is unconstitutional on its face. Although topless dancing in establishments selling liquor may properly be regulated (California v La Rue, 409 US 109), the ordinance involved is an across the board prohibition against any breast exposure in public. Since the thrust of the statute is directed against nudity rather than obscenity, it infringes upon the exercise of [914]*914First Amendment rights. Even if the ordinance may be constitutionally applied to the activities of defendants, it may be challenged on the basis of overbreadth if, as here, it is drawn so as to sweep within its ambit the speech or expression of other persons not before the court (Doran v Salem Inn, 422 US 922).

Concur — Farley, P. J., Pittoni and Gagliardi, JJ.

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Memorandum. The orders should be affirmed.

In our opinion section 40-1 of the Yonkers City Code is unconstitutional on its face. Although topless dancing in establishments selling liquor may properly be regulated (California v La Rue, 409 US 109), the ordinance involved is an across the board prohibition against any breast exposure in public. Since the thrust of the statute is directed against nudity rather than obscenity, it infringes upon the exercise of [914]*914First Amendment rights. Even if the ordinance may be constitutionally applied to the activities of defendants, it may be challenged on the basis of overbreadth if, as here, it is drawn so as to sweep within its ambit the speech or expression of other persons not before the court (Doran v Salem Inn, 422 US 922).

Concur — Farley, P. J., Pittoni and Gagliardi, JJ.

People v. Nixon, 88 Misc. 2d 913, 390 N.Y.S.2d 518, 1976 N.Y. Misc. LEXIS 2773 (N.Y. Ct. App. 1976).

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Opinion

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