(dissenting) — I agree with Utter, J., that the lewd conduct ordinance section 12A.12.150(l)(a), (2), (4), which characterizes as lewd the exposure of female breasts in a public place, or at a place and under circumstances where such act could be observed by any member of the public, in law is arbitrary, capricious and violative of equal protection, rendering the dismissal of the charge mandatory. I also believe the ordinance is unconstitutionally overbroad, in violation of the First Amendment, for the reasons discussed herein. I agree with the majority, however, that it is not invalid under the state's equal rights amendment. Const, art. 31 (amendment 61).
To be violative of equal rights a statute or ordinance must address some matter or conduct which is substantially identical in both sexes. A regulation or proscription applied only to members of one sex, then, would be unlawful discrimination based on sex.
When, however, the matter regulated or prohibited relates to a physical characteristic peculiar to one sex, and not common to both, the discrimination may be valid. See General Elec. Co. v. Gilbert, 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401, 409 (1976). Geduldig v. Aiello, 417 U.S. 484, 496 n.20, 41 L. Ed. 2d 256, 94 S. Ct. 2485 (1974). See also Brown, Emerson, Falk & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 871, 893 (1971), which states the matter well as follows:
The fundamental legal principle underlying the Equal Rights Amendment, then, is that the law must deal with particular attributes of individuals, not with a classification based on the broad and impermissible attribute of sex. This principle, however, does not preclude legislation (or other official action) which regulates, takes into account, or otherwise deals with a physical characteristic unique to one sex. In this situation it might be said that, in a certain sense* the individual obtains a benefit or is subject to a restriction because he or she belongs to one or the other sex. Thus a law relating to wet nurses would cover only women, and a law regulating the donation of *617sperm would restrict only men. Legislation of this kind does not, however, deny equal rights to the other sex. So long as the law deals only with a characteristic found in all (or some) women but no men, or in all (or some) men but no women, it does not ignore individual characteristics found in both sexes in favor of an average based on one sex. Hence such legislation does not, without more, violate the basic principle of the Equal Rights Amendment.
This exception was noted in Darrin v. Gould, 85 Wn.2d 859, 872 n.8, 540 P.2d 882 (1975), but was not applicable. In that case we held a regulation prohibiting girls from playing interscholastic contact football on boys' teams violated the equal rights amendment. The regulation was defective because it discriminated solely on the basis of gender. Since boys and girls in that case were found capable of equal performance in football, to exclude only girls from play was held clearly to discriminate on the basis of sex. The Seattle ordinance in question here, however, regulates not on the basis of gender, but on the basis of possession of a physical characteristic, one which is unique to women, i.e., female breasts.
It is contended that female breasts are not unique to females, that some men have breasts. For purposes of this dissent, we may assume this is true. However, the number of such men in our society is on the whole very, very small. In popular understanding, female breasts are a characteristic of the female, not of the male. In interpreting the reach of the equal rights amendment, we should interpret that amendment in a manner that meets a common understanding. The understanding of an elite group of professionals that a small group of men have such breasts is not the common understanding of the characteristic, and should not guide our application of the amendment.
While the ordinance prohibiting exposure of female breasts in public does not violate the equal rights amendment, it does violate the First Amendment. The language of the ordinance is so broad that it prohibits conduct which is *618symbolic speech clearly protected by the First Amendment. It is therefore unconstitutionally overbroad and void.
An ordinance or legislative act is overbroad if its reach extends beyond speech or conduct legitimately subject to regulation and prohibits or suppresses constitutionally protected speech or conduct. United States v. Robel, 389 U.S. 258, 266, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967). The Seattle ordinance suppresses protected speech by prohibiting nudity in dramatic performances taking place in any public place other than a theater or museum. City of Seattle ordinance No. 12A.12.150. Indeed, the ordinance reaches even further to prohibit these performances in any private place which might be within the view of a member of the public. City of Seattle ordinance No. 12A.12.150(2). Nudity in some dramatic performances is protected First Amendment symbolic speech, as the majority concedes. By limiting severely the places in which such productions may be performed, the ordinance on its face suppresses constitutionally protected speech. Such overbreadth is fatal to the validity of the ordinance.
It is true that the defendants before us here do not claim to have been engaged in a dramatic production or other First Amendment expressive conduct. They do not claim that First Amendment requirements prevent the City from prohibiting their conduct. Nor do they argue the City did not intend to prohibit such conduct. With regard to the validity of the ordinance under which they are charged; however, it is irrelevant whether the defendants were engaged in protected speech or not. The First Amendment question is whether the ordinance under which the defendants are charged is valid. If it is overbroad — and it clearly is — it is invalid, and may not be used to punish any conduct whatsoever. The charges against the defendants must then be dismissed.
The reason for such an outcome is compelling. The very existence of overbroad laws is an intolerable burden on cherished freedoms of speech and expression. Thus, even those whose conduct may constitutionally be punished are *619allowed to challenge the validity of an ordinance or statute on the basis of overbreadth, to ensure that the defective law will not continue to suppress free speech. The rule was stated in Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975) (hereinafter referred to as Doran), a case cited and discussed by the majority.
We have previously held that 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. As we said in Grayned v. City of Rockford, 408 U.S. 104, 114 (1972):
"Because overbroad laws, like vague ones, deter privileged activity, our cases firmly establish appellant's standing to raise an overbreadth challenge.11
Although the majority opinion appears somewhat critical of this rule, it is nonetheless binding on this court under the supremacy clause. U.S. Const, art. 6. The defendants here may therefore challenge the Seattle ordinance for over-breadth.
The result is not inconsistent with our own holdings. Discussing the problem of an ordinance which was unconstitutionally vague, this court said:
[T]he city contends that good intentions and self-restraint of law enforcement officers will not result in unjust prosecution. This assurance, however, does not save the ordinance because "well-intentioned prosecutors ... do not neutralize the vice of a vague law." Baggett v. Bullitt, 377 U.S. 360, 373, 12 L. Ed. 2d 377, 84 Sup. Ct. 1316 (1964). The law should be so drawn as to make it inapplicable to cases which obviously are not intended to be included within its terms.
Seattle v. Drew, 70 Wn.2d 405, 409-10, 423 P.2d 522 (1967). This reasoning is equally applicable to an ordinance which is overbroad. Where constitutionally protected rights of free speech and expression are concerned, it is vital that a regulation be precisely and narrowly drawn if a challenge on the basis of overbreadth is to be avoided. See NAACP v. *620Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).
The Seattle ordinance is defective because it affects constitutionally protected dramatic performances by discriminating on the basis of their content, i.e., nudity, and suppressing those performances which contain nudity. Those performances, under the ordinance, may take place only in theaters and museums. It is contended that this provision for expressive performances is adequate protection for First Amendment freedoms. I disagree. It may be, as the majority argues, that the City of Seattle has taken care to "exempt from [the ordinance's] provisions those artistic and theatrical performances which might conceivably involve the exercise of constitutional freedoms." Even so, the city council had failed in this ordinance because it is not sufficiently narrowly drawn.
It has been argued that the word "theatres" is broad enough to include any place where a dramatic production of a type protected by the First Amendment would take place. Such a definition is inconsistent with the structure of the ordinance, and goes beyond the common meaning of the word. A common definition which is appropriate for use in construing this ordinance is found in Black's Law Dictionary 1647 (4th ed. 1968):
Theater. Any edifice used for the purpose of dramatic or operatic or other representations, plays, or performances, for admission to which entrance-money is received, not including halls rented or used occasionally for concerts or theatrical representations.
See also 2 Bouvier's Law Dictionary 3265 (8th ed. 1914). This common meaning, the meaning understood by the ordinary citizen, must control our interpretation of the ordinance. New York Life Ins. Co. v. Jones, 86 Wn.2d 44, 47, 541 P.2d 989 (1975). The'broad meaning suggested by the majority, on the other hand, eradicates the distinction between a theater and a theatrical performance. This is not the common understanding of the word "theater." It is also inconsistent with the structure of the ordinance. To include *621an open public park in the definition of a theater, for example, would contravene the prohibition against nudity at a place where a member of the public could observe it. Furthermore, the pairing of museums and theaters in the exception clause suggests an intent to except buildings, not places, where dramatic productions or cultural events are most commonly held. A consistent and proper construction of the ordinance, then, is that it prohibits dramatic performances containing nudity in any place outside a museum or structure of a type commonly understood to be a theater.
The majority believes such a restriction is proper. There is no showing, they argue, that First Amendment expression containing nudity must be permitted in parks or other public places. They appear to ignore the fact that First Amendment jurisprudence is replete with United States Supreme Court decisions guaranteeing freedom of speech in such public places, and denying governments the right to restrict or prohibit such speech on the basis of its content. The majority does not contend this ordinance prohibits only obscenity or pornography, which are not protected by the First Amendment. See Miller v. California, 413 U.S. 15, 23, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973). They do not deny that protected First Amendment expression is regulated by the ordinance. We need only quote, then, a passage from Hudgens v. NLRB, 424 U.S. 507, 520, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1975):
For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U.S. 569; Paulos v. New Hampshire, 345 U.S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U.S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression. Erznoznik v. City of Jacksonville, 422 U.S. 205. "[Ajbove all else, the First Amendment means that government has no power to *622restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95.
The majority would discriminate in the regulation of expression in artistic performances on the basis of its content, i.e., nudity, by confining it to only a few of many available public fora. That discrimination is impermissible. In this regard the majority opinion misconstrues the significance of Erznoznik v. Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975) (hereinafter referred to as Erznoznik).
In .Erznoznik the court held unconstitutional on its face an ordinance prohibiting the showing of films containing nudity by a drive-in theater where the screen is visible from a public street or other public place.8 The City of Jacksonville's argument that it may protect its citizens from unwilling exposure to material which may be offensive was flatly rejected. A municipality may protect individual privacy by reasonable regulations which are applicable to all speech regardless of content. Erznoznik v. Jacksonville, supra at 209. The power of a municipality to selectively prohibit certain kinds of speech in public areas on the grounds they are more offensive than others, however, is strictly limited.
Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, see Rowan v. Post Office Dept., 397 U. S. 728 (1970), or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. See Lehman v. City of Shaker Heights, [418 U.S. 298 (1974)].
(Footnotes omitted.) Erznoznik v. Jacksonville, supra at 209. The court explained further:
[T]he Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener *623or viewer. Rather . . . the burden normally falls upon the viewer to "avoid further bombardment of [his] sensibilities simply by averting [his] eyes." Cohen v. California [403 U.S. 15], at 21.
Erznoznik v. Jacksonville, supra at 210-11. Thus, because an unwilling viewer of nudity in films may avert his eyes, nude performances may not be banished from public parks.
The majority argues, however, that Erznoznik supports its view because it distinguishes "public nudity traditionally subject to indecent exposure laws" from protected expression. Erznoznik v. Jacksonville, supra at 211 n.7. Nudity as indecent exposure is one thing but nudity as a form of artistic expression is another. The language of the ordinance prohibits more than indecent exposure. It prohibits nudity as a form of artistic expression, which is constitutionally protected. For this reason the ordinance is defective. Indecent exposure may of course be prohibited by carefully written laws. This ordinance, however, is not narrow enough. It sweeps within its bounds much that may not lawfully be prohibited. It is overbroad.
The majority concedes that nudity in dramatic performances is a form of expression protected by the First Amendment. This is the inescapable conclusion to be drawn from the holdings of the United States Supreme Court in Doran v. Salem Inn, Inc., supra and Erznoznik v. Jacksonville, supra.
In Doran the court held that a First Amendment challenge to an ordinance prohibiting nude dancing in any public place was likely to succeed on the merits. This form of entertainment, it was noted, may be entitled to First Amendment protection under some circumstances. Doran v. Salem Inn, Inc., supra at 932. The court quoted with approval a passage from the lower court opinion, which cited a particular instance of protected artistic expression containing nudity:
"[T]his ordinance would prohibit the performance of the 'Ballet Africains' and a number of other works of *624unquestionable artistic and socially redeeming significance." 364 F. Supp. 478, at 483.
Doran v. Salem Inn, Inc., supra at 933. First Amendment protection of nudity in expressive performances was emphasized in Erznoznik. In that case the court sustained a First Amendment challenge to an ordinance prohibiting the screening of films containing nudity in outdoor theaters on the grounds that protected speech was suppressed. Erznoznik v. Jacksonville, supra at 211 n.8. It is clear from these cases that nudity as a part of expressive performances is symbolic speech protected by the First Amendment.
The District Court observed, we believe correctly:
"The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in 'any public place' with uncovered breasts. There is no limit to the interpretation of the term 'any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. Thus, this ordinance would prohibit the performance of the 'Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance.11 364 F. Supp., at 483.
Doran v. Salem Inn, Inc., supra at 933.
The majority nonetheless argues that, regarding the appearance in public of women with naked breasts, a distinction must be made between ordinances regulating pure speech and those regulating conduct. The Seattle ordinance regulates conduct and thus, it is claimed, is not subject to the same First Amendment objections as is one regulating speech. This argument is patently inconsistent with the majority's recognition that dancing may be expression, and fails to recognize the basic First Amendment notion that conduct which is expression can be "akin to 'pure speech."' Tinker v. Des Moines School Dist., 393 U.S. 503, 508, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). In other words, ideas and thoughts may be conveyed by nonspeech symbols as well as words, and those symbolic expressions are fully protected by the First Amendment. Baring of breasts in public may *625be indecent exposure, or it may be an expression of ideas which is akin to speech. The latter may not be prohibited, nor confined to a few places, because of its content.
Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots.
Tinker v. Des Moines School Dist., supra at 513.
We emphasize once again that it is irrelevant whether the defendants before us here were engaged in protected speech or not. It may be true that the conduct in question here may be prohibited by the City of Seattle. The question we must face, however, is whether the ordinance under which the defendants are charged is valid. Because it contravenes the requirements of the First Amendment, it is not valid. The defendants may not be punished for violation of an invalid ordinance.
In summary, then, the Seattle ordinance is unconstitutionally overbroad on its face because it prohibits symbolic speech protected by the First Amendment — an objection defendants may raise here. It also violates the due process and equal protection clauses in its arbitrary and capricious characterization of the exposure of female breasts as lewd. For any one of these reasons the ordinance may not be applied to defendants and the charges should be dismissed.
Utter, J., concurs with Horowitz, J.
The similarity between the reach of the Jacksonville ordinance, to nudity visible from a public place, and that of the Seattle ordinance, to nudity visible at any public place (except a theater or museum) and by any member of the public, is striking.