concurring in judgment.
As far as the federal Constitution is concerned, there is no reason why the State of Michigan or the City of Inkster cannot, pursuant to properly drafted'laws or ordinances, prohibit saloonkeepers from placing bare-breasted women dancers on public exhibition. In light of Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), indeed, it appears that such a prohibition could pass federal constitutional muster even if extended to the proprietors of “bookstores” or other public places where liquor is not served.
Under current Supreme Court doctrine, however, nude dancing is considered “expressive conduct” that comes “marginally,” at *1080least, “within the outer perimeters of the First Amendment_” Id. at -, 111 S.Ct. at 2460 (plurality opinion of Rehnquist, C.J.) That fact, it seems to me, makes the central issue in this appeal a very easy one to decide.
The central issue is whether the proceeding instituted by plaintiff G & V Lounge, Inc., constituted one of the “Cases” or “Controversies” to which the federal judicial power extends — and to which the judicial power is limited — under Article III, § 2 of the United States Constitution. The district court determined that “there presently is no case or controversy between the parties,” the plaintiff not having begun to stage the topless dancing it wanted to present, and the court therefore dismissed the matter for want of any constitutional power to adjudicate it. This was error.
It was error because the licensing scheme at issue here (1) was arguably designed for application to expressive activities protected by the First Amendment, and (2) was arguably overbroad. “In the area of freedom of expression,” as Judge Jones has noted in Part II of his opinion, “it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be 'proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737-38, 13 L.Ed.2d 649 (1965), as quoted in City of Lakewood v. Plain Dealer Publishing Co., 486 U.S; 750, 756, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988) (emphasis added by the Lakewood Court). And “even though a statute or ordinance may be constitutionally applied to the activities of a particular defendant, that defendant may challenge it on the basis of overbreadth if it is so drawn as to sweep within its ambit protected speech or expression of other persons not before the Court.” Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975). One need go no further than this to decide the main question presented in the case at bar, but I agree with the additional reasons given by Judge Jones for concluding that a case or controversy does exist here.
I agree also that the district court must take another look at the plaintiffs application for a preliminary injunction. The district court offered some comments from the bench on the question of whether the plaintiff would have been entitled to an injunction if a case or controversy had been shown to exist, but because the court had already announced its determination that there was no case or controversy, the comments on the injunction were somewhat extraneous. Now that a jus-ticiable ease has been held to exist, I am confident that the district court will give more systematic thought to the injunction question — a question that appeared purely hypothetical when the court made its original observations. I would not want to prejudge the question, because I assume that the defendant city may well have amended its ordinances by the time the court ultimately decides whether an injunction should issue.