concurring.
We have before us a prosecution for “public indecency” based upon nude dancing performed by the appellants on a stage separated by a glass partition from the booths containing their audience. I agree with the majority that the activity occurred in a public place.
The more viable issue is whether the statute criminalizing the conduct was over-broad and an impermissible invasion of First Amendment guarantees. Relying upon our Supreme Court’s decision in State v. Baysinger (1979), 272 Ind. 236, 397 N.E.2d 580 the majority holds that conduct rather than expression is involved and that no constitutional question is present. In so doing, it does not discuss the decision in Schad v. Borough of Mount Ephraim (1981), 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 cited by appellants as necessarily establishing that nude dancing is protected free expression.
In Schad the activity in question was live nude dancing viewed from a booth through a glass panel as in the case before us. There, as here, the activity was presented in an adult bookstore, and patrons utilized a coin-operated mechanism to enable them to view the dancer.
The question presented in Schad was whether this activity could properly be proscribed by a municipal zoning ordinance that purported to prohibit any commercial form of live entertainment in an established commercial zone. 452 U.S. at 64, 101 S.Ct. at 2180. The Court reversed the convictions with four justices concurring specially and two justices dissenting. Writing for the Court Justice White noted that entertainment, as well as political and ideological speech, is protected and stated:
“Nor may an entertainment program be prohibited solely because it displays the nude human figure. ‘[Njudity alone’ does not place otherwise protected material outside the mantle of the First Amendment.”
452 U.S. at 66, 101 S.Ct. at 2181.
His opinion then proceeds to an examination of the ordinance, its impact and the justifications for First Amendment intrusions upon the assumption that freedom of expression is involved. Only Justice Stevens’ concurrence expressly acknowledges that some instances of nude dancing may be protected, while others may not.1 452 U.S. at 80, 101 S.Ct. at 2188.
It does not appear from the text that the Borough presented the question as an issue so it was necessarily decided by the majority. Instead it appears most likely that it did not. Furthermore, the three decisions *744cited by Justice White2 simply stand for the proposition that all nudity is not obscene. Thus, Schad appears to simply beg the question as to whether live nude dancing necessarily involves free speech-expression.
The court in Baysinger distinguished between live dancing, which it felt might be no more than conduct, and nudity portrayed in books, films or plays, which it felt had to be interpreted in the context of the total presentation. 397 N.E.2d at 586.
I find nothing in Schad which necessarily overrules that view. We are therefore constrained by Baysinger to affirm.
I concur.
. The Chief Justice joined by Justice Rehnquist, dissenting, merely note that they assume ar-guendo "the ‘expression’ manifested in nude dancing that is involved here is somehow protected speech_” 452 U.S. at 86, 101 S.Ct. at 2192.
. Jenkins v. Georgia (1974), 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (concerning the movie "Carnal Knowledge"); Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (the rock musical “Hair”); and Erznozik v. City of Jacksonville (1975), 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (the movie "Class of '74").