concurring:
My colleagues on the panel have argued that “commonsense” must prevail over “literalism” given the “ultimate ambiguity of any written text.”1 The panel majority *117has gone on to conclude that any person, here in particular Jeanine Biocic, applying common understanding to the federal regulation finding applicable local “indecency” laws and the county ordinance “prohibiting public nudity” could not fail but to be warned of the illegality of removing the top of a woman’s bathing suit in an area open to the public, even without members of the public present. But such supposed widespread public understanding does not equal the precision of the written word which a criminal prohibition should provide.
An increasingly large number of persons comprising the body politic does not agree with the definition of indecency. While I have substantial doubts as to how long the almost-everyone-feels-that-way attitude will prevail, bearing in mind how rapidly the country passed through the era in the 1890s when men first began to swim bare breasted or the demise of the necessity for women to wear stockings and shoes while swimming, I acknowledge that, as of the moment, the predominant belief as to what constitutes propriety and indecency relied on by the majority still endures. A dissent, therefore, would not be appropriate.
Nonetheless, I write to express my belief that commonsense, relied on so heavily to excuse the lack of plain meaning of language, is exactly what has been missing in the prosecution of Biocic. It seems to me questionable in the extreme to rely on a popular interpretation to construe the words of a regulation to convict when no human beings, other than an entirely willing companion and a federal Fish and Wildlife Service officer, were present and Biocic was offered no opportunity to replace her top.
Furthermore, the majority’s decision can hardly be read to hold that all actions resulting in "nudity” are illegal. Some would raise more difficult problems of “vagueness”; others would not result in a holding of criminality. Though logic has impelled the prosecution to insist that the law admits of no exceptions, it is literally beyond comprehension to conceive that a mother of a two-year old infant, even on a heavily populated beach would be hauled into federal court for changing a diaper in response to a call of nature. The same thing I daresay would be true in the case of a three-year old openly relieving himself or herself, or a four-year old cavorting stark naked at the water's edge. And what of a woman wearing a one-piece bathing suit who lowers her suit to remove an offending piece of slime from her stomach area? Or a man who, upon viewing no one in the vicinity, finds the lure of the water undeniable, and begins to change into bathing trunks? In its zeal, the prosecution, with a straight face, classifies such hypothetical occurrences as crimes. Criminal “indecency,” the language involved, involves concepts of offensiveness and public outrage at the behavior. Only those aspects of public nudity prohibited by the statute which are also “indecent” or “offensive” can be made illegal by the federal regulation. I submit that the above examples could not so be found.
The fact in the present case which is relied on to remove Biocic from the “decent” acts of public nudity appears in a parenthetical comment by the district court judge: “Apparently, nude and semi-nude sunbathing in this area of the Refuge is of sufficient frequency as to warrant regular *118patrols devoted to ticketing participants.” Biocic, although she was first careful to scan the scene in an attempt to insure no one would be offended, decided to remove her top in an area where members of the public who might be potentially offended might venture upon her in her state of deshabille. In United States v. Hymans, 463 F.2d 615, 619 (10th Cir.1972), the court, pursuant to an earlier federal regulation, agreed with the charge that nude sunbathing “where the general public is or is likely to be” constituted “indecent conduct.” Id. at 619. Actual widespread offense does not appear to have been required.
Biocic chose the location to unburden her bosom, taking care to be far from the madding (or maddened) crowd. She exercised vigilance to be out of sight of everyone but her male companion. He obviously perceived no indecency in Biocic’s act, at least the record reveals no objection on his part to what she was doing. As for the valiant Fish and Wildlife Service officer who skillfully eluded detection by Biocic through skulking behind sand dunes until the opportunity to swoop down like a wolf on the fold first presented itself, he also never appears to have found Biocic’s actions indecent.2
Nevertheless, we today hold that in a frequented public area, pursuant to a regulation which technically prohibits intentional nudity “in public, or in a public place, or in a place open to the public or open to public view,” Biocic’s desire for the comfort of a bare bosom, however careful she was to avoid public viewing, may fall victim to community vigilance. We do so by questionably equating “nudity” with “indecency.” Had Biocic chosen a location far from areas regularly accessible to the public, or had she offered some justification other than the non-offensive worship of the sun, I would find no difficulty in dissenting. I believe it would be inappropriate to veer so close to a free utterance violation or to an invasion of the right of privacy to seek such an attenuated enforcement of the criminal law. While not sufficient, under the law as it now is, to justify a dissent, the case brings us close to a situation like the age-old conundrum of whether, when a tree falls in the forest, far removed from anyone to hear it, there is a sound.
Yet, constrained by precedent, I am compelled to concur. The time may well soon come, as it has already with the French and others, when the perceived public sense of outrage will wane. Biocic’s action will then be classified as non-criminal, not because it was a bold blow for “liberty,” but because it was too trifling — perhaps even childish — a matter for a community to spend time and energy addressing.
. The regulation under which prosecution of Biocic was brought, 50 C.F.R. § 2782, made criminal “indecency or disorderly conduct as defined by State or local laws." The indecency was deemed by the magistrate judge, in light of an Accomack County Code provision, to mean nudity, defined as “showing of the female breast.”
Yet the magistrate at the same time soundly rejected, with no correction from any higher *117judicial authority, the government’s claim that Biocic’s conduct amounted to indecent exposure under Virginia law. The magistrate found that Virginia law requires that "the display and exposure of the person or his or her private parts be ‘obscene.’” He concluded, "Defendant’s conduct certainly did not have as its dominant theme or purpose any appeal to the ‘prurient,’ ‘shameful,’ or ‘morbid’ interest in sex; on the contrary, it was apparently wholesome (defendant testified she wanted to get some 'extra sun’) in its intent and purpose and was carried out relatively discreetly and circumspectly.” To me, it appears an almost equal violation of language to equate "nudity” with the operative word of the regulation: indecency.
Biocic has not pursued her First Amendment argument, apparently accepting the district court judge’s finding that her conduct was "utterly lacking in any speech element.” Had she raised a more valid First Amendment claim based on expression, I note that a conviction for indecency which was not obscene would fail because "expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989).
. It is “arresting" indeed to imagine Mm averting his eyes while making the arrest. Yet the fact that participation by him may have been an essential ingredient of the crime charged would appear to afford no defense to Biocic. Unlike situations in which a government agent’s participation in suspicious acts to create a conspiracy will not succeed, see, e.g., United States v. Hayes, 775 F.2d 1279, 1283 (4th Cir.1985), the Fish and Wildlife Service officer's "participation" did not depend on his intent.