I respectfully dissent. The majority overrules our own decision in Crownover v. Musick (1973) 9 Cal.3d 405 [107 Cal.Rptr. 681, 509 P.2d 497], and, in doing so, bars the County of Santa Clara from enforcing its nude dancing ordinance. In my view, the majority seriously errs. Our Crownover analysis remains eminently sound and fully supports the constitutional validity of the county’s ordinance.
The challenged ordinance, of course, is presumed to be constitutional. (City of Industry v. Willey (1970) 11 Cal.App.3d 658, 663 [89 Cal.Rptr. 922].) Moreover, it is solidly based upon two legitimate and substantial governmental interests: the traditional interest of local communities in promoting public morality and general welfare, and the emerging concern over the social harm caused by the sexual exploitation and degradation of women for profit. We should sustain the ordinance.
By its adoption of Penal Code sections 318.5 and 318.6, the Legislature has authorized municipalities to regulate nude or seminude entertainment. Section 318.5 permits the adoption of ordinances which directly regulate “the exposure of the genitals or buttocks of or the breasts of any person who acts as a waiter, waitress, or entertainer ...” in places serving food or beverages for on-premises consumption. The section further recites that its provisions “shall not apply to a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances. ” Section 318.6 permits adoption of similar ordinances “relating] to any live acts, demonstrations, or exhibitions which occur in public places, places open to the public, or places open to public view . . . .” This section also contains a specific exemption for a “theater . . . primarily devoted to theatrical performances.”
The county’s nude dancing ordinance complies with the foregoing statutory provisions and no one contends otherwise. The sole question before us is whether that ordinance represents an unconstitutional restraint upon some form of protected expression.
*571Just nine years ago in Crownover, we upheld substantially identical ordinances against identical constitutional challenges which urged that nude dancing is a form of communicative activity protected by the First Amendment. In flatly rejecting the contention which the majority now accepts we held, alternatively, that (1) nude dancing ordinances regulate conduct, not speech, and such activity enjoys no First Amendment protection, and (2) even if some protected “communicative element” may exist, appropriate and legitimate governmental interests justify regulation or prohibition of nude dancing. (9 Cal.3d at pp. 425-428.)
Justice Sullivan, in writing for our court in Crownover, made the following cogent observations which retain their essential validity today: “It is clear that these provisions of the ordinances are directed at conduct—topless and bottomless exposure—and not at speech or at conduct which is ‘in essence’ speech or ‘closely akin to speech.’ A common sense construction [citation] of the pertinent provisions is that they proscribe nudity in specified public places. They do not prohibit entertainment but merely enjoin that if the entertainer or performer offers it, he or she must have some clothes on. In a word the ordinances regulate conduct. [1] Is such conduct symbolic in the constitutional sense? Is this nudity in bars and other specified places open to the public so inherently communicative by nature as to call for the protection given the ‘interchange of ideas .... [1] [a]ll ideas having even the slightest redeeming social importance’ [citation]? The questions seem to provide their own negative answers. Unless we wish to blind ourselves to what is happening in big cities with their ‘topless’ and ‘bottomless’ bars and ‘nude live acts’ in a tawdry atmosphere that blights the neighborhood if not the entire community, it is common knowledge that such conduct is nothing more than a sales gimmick. It is delusive to speculate in the face of these realities that the entertainment in this milieu will acquire protectible communicative properties by exposure of the genitals, pubic area or female breasts of the performers. Assuming arguendo that there may ensue in instances an expression which is communicative in the constitutional sense, we do not think it is unreasonable to regulate the form or manner of the communication.” (Pp. 425-426, italics in original.)
Having initially concluded that nude dancing ordinances regulate conduct rather than speech, we nevertheless assumed in Crownover, for the purpose of argument, that in some instances a “communicative element” might exist which would invoke the four-fold test of United States v. O’Brien (1968) 391 U.S. 367, 376-377 [20 L.Ed.2d 672, 679-680, 88 S.Ct. 1673], to determine whether such conduct is constitutionally protected activity. We then applied the O’Brien test to such ordinances:
*572“First, it cannot be doubted that the governmental entities in the instant cases have the inherent constitutional power to regulate nude conduct in bars, restaurants and other public places. It is clear that such regulations are justified by considerations of public morals and general welfare [citations] to mention two, and the very elasticity of the police power gives it the capacity to meet the reasonable current requirements of a changing world. [Citation.]
“Second, it cannot be gainsaid that the regulations further ‘an important or substantial governmental interest’ (United States v. O’Brien, supra, 391 U.S. 367, 377 [20 L.Ed.2d 672, 680]) in promoting public morals. It is our province to take note of public morality, not to dictate it. In this pluralistic society we cannot say that a ‘topless’ female or a ‘bottomless’ or nude person of either sex in a public place or place open to the public is ‘socially commonplace’ [citation] or has the support of a ‘societal consensus’ [citation]. Indeed, the instant legislation conceivably gives some indication that such nude conduct is not in accord with the mores of the people as a whole.
“Third, it is also clear that this governmental interest in regulating nude conduct is ‘unrelated to the suppression of free expression . . . .’ (United States v. O’Brien, supra, 391 U.S. 367, 377.) The regulation is aimed at conduct, not speech; at ‘separately identifiable conduct’ [citation], not at an activity ‘entirely divorced from actually or potentially disruptive conduct . . . .’ [Citation.]
“Fourth, if the ordinances impose any incidental restriction on First Amendment freedom of speech and expression (and we doubt that they do) it is certainly ‘no greater than is essential to the furtherance of [an important or substantial governmental] interest.’ (United States v. O’Brien, supra, 391 U.S. 367, 377.) The ordinances do not prohibit speech or expression or entertainment; they merely direct that the entertainer cannot appear with genitals or breasts exposed. The ordinances proscribe no more than is necessary to ban the nudity which has been deemed harmful to public welfare or morals.
“We are satisfied therefore that, upon the assumption made of some communicative element in the conduct here under discussion, the ordinances before us meet all of the four requirements set down by the Supreme Court in the O’Brien case.
“We, therefore, conclude that the ordinances on their face. do not infringe upon the rights of freedom of speech or expression but are valid regulations of conduct. In light of this conclusion we reject plaintiffs’ *573contention that the ordinances are unconstitutionally broad.” (9 Cal.3d, at pp. 427-428, italics in original, fns. omitted.)
There is some significance in the fact that the United States Supreme Court, the final arbiter of First Amendment values in this nation, denied certiorari in Crownover (415 U.S. 931 [39 L.Ed.2d 489, 94 S.Ct. 1443]).
To justify its retreat from our Crownover principles, the present majority depends principally upon a few decisions from lower federal courts and upon inconclusive dicta from wholly inapposite decisions of the high court. From these barren sources, my colleagues conclude that regulation of nude dancing “impingefs] upon protected speech” (ante, p. 563) and that such regulation may be sustained only if it is “ ‘narrowly drawn’ and furthers ‘a sufficiently substantial governmental interest’” (id., at p. 565). Relying on these cases, the majority labors to extract a principle that “the promotion of public morals” is an insufficient state interest to justify such regulation (id., at p. 566). These conclusions are wholly unsupported by any post-Crownover decisions of the high tribunal which I now briefly review.
In Erznoznik v. City of Jacksonville (1975) 422 U.S. 205 [45 L.Ed.2d 125, 95 S.Ct. 2268], the court struck down an ordinance which prohibited the exhibition at drive-in movie theaters of all films containing nudity. The court observed that the ordinance would have applied to films protected by the First Amendment. (Pp. 208-212 [415 L.Ed.2d pp. 130-133].) As I have previously noted, the ordinance before us is considerably less sweeping, for it specifically exempts any acts or exhibitions occurring in theaters, concert halls or similar establishments.
Similarly, in Doran v. Salem Inn, Inc. (1975) 422 U.S. 922 [45 L.Ed.2d 648, 95 S.Ct. 2561], the high court affirmed a preliminary injunction directed at a municipal ordinance which prohibited “topless” dancing in “any public place.” (Italics added.) Doran is significant in two respects. First, in describing the nature of the constitutional implications .of such dancing the high tribunal was cautious in its approach. The court said, in dictum, that such “barroom” nude dancing “may involve only the barest minimum of protected expression,” and “might be entitled to First and Fourteenth Amendment protection under some circumstances.” (P. 932 [45 L.Ed.2d p. 660], italics added.) Second, the Doran court stressed that the ordinance there under attack “ ‘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 *574performance of the “Ballet Africains” and a number of other works of unquestionable artistic and socially redeeming significance.’” (P. 933 [45 L.Ed.2d p. 660], quoting with approval the lower court opn. in Doran, italics added.) Without reaching the “ultimate merits” of the constitutional question, the high court determined that the trial court did not abuse its discretion in issuing the preliminary injunction. (P. 934 [45 L.Ed.2d p. 661].)
Doran is thus wholly inapposite, involving as it does a total ban on “topless” dancing regardless of either the location or the theatrical nature of the performance. In contrast, the municipal regulation of nude dancing before us, exactly as in Crownover, again specifically does not extend to “a theater, concert hall, or similar establishment which is primarily devoted to theatrical performances.” (Pen. Code, §§ 318.5, 318.6.) Moreover, while suggesting that nude dancing might represent the “barest minimum” of protected expression “under some circumstances,” the high court expressly declined to explore that issue. Doran, accordingly, does not require any reconsideration of Crownover’s initial assumption that regulation of dancing without clothes restrains conduct, not speech.
Nor is Schad v. Mount Ephraim (1981) 452 U.S. 61 [68 L.Ed.2d 671, 101 S.Ct. 2176], in point. In Schad, the court struck down a purported “zoning” measure which would have excluded all commercial live entertainment in borough limits, including nude dancing. The court observed that Mount Ephraim had failed to justify adequately “its substantial restriction of protected activity.” (P. 72 [68 L.Ed.2d p. 682], fn. omitted.) Rather than decide the precise extent to which nude dancing might share such protection, the court merely stated that “ Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the borough: no property . . . may be principally used for the commercial production of plays, concerts, musicals, dance or any other form of live entertainment.” (P. 66 [68 L.Ed.2d p. 679], fn. omitted, italics added.)
Thus, Schad, considering as it did a sweeping restriction on all live entertainment, wholly fails to support the present majority’s contention that prohibition of nude nontheatrical dancing impinges upon some protected activity. In view of the unduly broad scope of the zoning ordinance at issue in Schad, the high tribunal had no need to, and did not, reach that issue. It bears repeating that we are not here presented with an attempted censorship of any theatrical performance.
Finally, New York State Liquor Authority v. Bellanca (1981) 452 U.S. 714 [69 L.Ed.2d 357, 101 S.Ct. 2599], likewise affords no support whatever for the majority position. Rather, Bellanca only reinforces the *575conclusion that the validity of the Crownover principles remain fully intact. In Bellanca, the high court upheld a state statute prohibiting nude dancing in bars. Once again, the Supreme Court declined to determine to what extend nude dancing partakes of any First Amendment protection, relying instead upon a state’s overriding express grant of authority to regulate the sale and consumption of alcoholic beverages. In the court’s words, “Whatever artistic or communicative value may attach to topless dancing is overcome by the State’s exercise of its broad powers arising under the Twenty-first Amendment.” (P. 718 [69 L.Ed.2d p. 361].)
We need not speculate on how the draftsmen of the First Amendment would have responded if, in 1789, they had been asked the question whether by banning nude dancing in a bar a county board of supervisors was thereby “abridging the freedom of speech” as the Founding Fathers understood the constitutional phrase. The important point is that the Supreme Court has never so held. This is fully confirmed by Justice Stevens in his dissenting opinion in Bellanca: “Although the Court has written several opinions implying that nude or partially nude dancing is a form of expressive activity protected by the First Amendment, the Court has never directly confronted the question" (Pp. 718-719 [69 L.Ed.2d p. 362], fn. omitted, italics added.) The justice then adds this interesting observation: “I must confess that if the question whether a State may prohibit nude or partially nude dancing in commercial establishments were squarely confronted on its merits, I might well conclude that this is the sort of question that may be resolved by the elected representatives of a community.” (Pp. 722-723 [69 L.Ed.2d p. 364], italics added.) Precisely.
Notwithstanding all of the foregoing, the present majority draws from Erznoznik, Doran, Schad and Bellanca a sweeping and wholly unwarranted conclusion that a ban on nude dancing impinges upon protected speech. Not so, for in Justice Stevens’ words in Bellanca, the high court “has never directly confronted the question.” In this connection, and with due deference to the Ninth Circuit, I neither ignore nor agree with the views expressed in Chase v. Davelaar (9th Cir. 1981) 645 F.2d 735. Within the context of the constitutional implications of nude dancing in a nontheatrical setting, until the Supreme Court itself speaks on the issue, I accept the interim evaluation of a member of that high tribunal, which, incidentally, was made after Chase, that the question remains unresolved. In the meantime, of course, as the majority properly notes, litigants may pursue their remedies where they will.
At this point, it is fair to ask whose freedom of speech does the majority seek to protect? Is it that of the dancer whose message is not that of oral or *576written speech or song or dance or expression, all of which are permitted, but who is only restrained from the removal of all clothing? Or is it the freedom of the dancer’s employer, the bar owner, who, for profit, exploits such “speech” to sell alcoholic beverages? Or is it that of the bar patron, who “gets the message” by receiving the communication? Whoever’s freedom it is and whatever its nature, if any, the high tribunal has never indicated that it would prevail over those public interests which were identified by us in Crownover. (9 Cal.3d supra, at p. 427.)
The ordinance being presumed constitutional, no United States Supreme Court decision being contrary, our inquiry then, as I conceive it, is to ascertain whether valid and legitimate grounds exist upon which the supervisors of Santa Clara County could justify the adoption of the ordinance.
It has recently been observed, on the related subject of control of obscenity, that “there can be little doubt that one of the major elements contributing to or detracting from the sense of community is the moral and aesthetic atmosphere which prevails in public places. ... It can be argued that the crucial problem of contemporary America is more a declining sense of community than a decreasing amount of free speech.” (Clor, Public Morality and Free Expression: The Judicial Search for Principles of Reconciliation (1977) 28 Hastings L.J. 1305, 1311-1312.) Nude dancing as commercial entertainment is the subject of appropriate local community concern affecting the “moral and aesthetic atmosphere” in the manner so vividly described by Justice Sullivan in Crownover (9 Cal.3d at p. 426). Such a community concern, as affecting a food and beverage establishment, has been reflected in the adoption by the people’s representatives of Penal Code sections 318.5 and 318.6. This concern identified by the Legislature is not limited to the health and environmental factors associated with bars or restaurants. The public concern is fully equivalent to and meets the “significant state interest” which is demanded by the majority. My colleagues regrettably engage in a studied retreat from the well established principle that a local community, in the exercise of its police powers, may fully consider “the interest of the public in the quality of life and the total community environment.” (Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 58 [37 L.Ed.2d 446, 457, 93 S.Ct. 2628]; see Young v. American Mini Theaters (1976) 427 U.S. 50, 71 [49 L.Ed.2d 310, 326-327, 96 S.Ct. 2440].) Former Chief Justice Earl Warren stressed the same point when he said that the law fully recognizes “the right of the Nation and of the States to maintain a decent society . . . .” (Jacobellis v. Ohio (1964) 378 U.S. 184, 199 [12 L.Ed.2d 793, 804, 84 S.Ct. 1676] (dis. opn.).) In furtherance of this legitimate end, the representatives of the *577sovereign people, in the exercise of their police power, surely may consider the maintenance of a community moral tone as well as the exploitation of its commercial opportunities.
There is a missing element in this dialogue, and that is a recognition that there are degrees of constitutionally protected communication. Speech, whether written, verbal, or demonstrative, is entitled to First Amendment protection. The Supreme Court has not recognized nude dancing in places serving food or beverages for on-premises consumption, as protected “speech.” However, even if the high tribunal had so held it does not follow that such “speech” is thereby immunized from the exercise of a county’s regulatory police power. Within a related context, Justice Stephens recently emphasized this principle in the following graphic manner: “Moreover even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire’s immortal comment ['I disapprove of what you say, but I will defend to the death your right to say it’].” (Young v. American Mini Theatres, supra, 427 U.S. 50, 70-71 [49 L.Ed.2d 310, 326].) If a dancer has any First Amendment right to remove all of her clothes, that right is one of “lesser magnitude” than that required to defeat a local community’s exercise of its police power in the protection of legitimate and recognized social values.
There is another compelling societal interest fully supportive of the regulation before us. This is the belated but growing awareness of social harm resulting from the sexual exploitation and degradation of women for profit. (See Bryant, Sexual Display of Women’s Bodies—A Violation of Privacy (1980) 10 Golden Gate L.Rev. 1211, 1227-1228; Brownmiller, Against Our Will, Men, Women and Rape (1973) pp. 390-396; see generally Dworkin, Pornography: Men Possessing Women (1981); Griffin, Pornography and Silence: Culture’s Revenge Against Nature (1981); Taking action, in Take Back the Night: Women on Pornography (Lederer edit. 1980) § VI, at pp. 259-291.)
As a recent commentator observed, “As long as the sexes are divided by unequal status, and women as a class are defined first and primarily by our sexuality, the sexual commercialization of female nudity will be an insult to the dignity and liberty of all women.” (10 Golden Gate L.Rev., pp. 1227-1228.) The student author thoughtfully argues that “The commercialization and exposure of our most private sexual characteristics for *578the gratification of the opposite sex, is a grievous example of an assault on liberty and privacy, and insult to a class of people.” (Id., p. 1234.)
As we noted in Crownover, nude dancing within this context is a pure commercial “sales gimmick.” If substantial numbers of the citizenry, additionally, find the conduct cheapening, demeaning and degrading to women the Santa Clara County Board of Supervisors, in my view, surely may consider these factors when, as a policy matter, it weighs considerations of public morality and the general welfare against some ethereal constitutional right to dance naked.
Other writers have suggested that there is a public safety factor that is inherent in this area; that the pornographic exposure or display of women’s bodies may, additionally, enhance the risks of rape, sexual assaults, and other sexual harrassment. (Brownmiller, supra, at pp. 390-396; Research on the Effects of Pornography, in Take Back the Night: Women on Pornography, supra, § IV, pp. 185-238.) I do not know whether there is any statistical correlation between nude dancing and criminal assaultive sexual behavior. I think it is possible, but perhaps there is none. In any event, the board of supervisors could reasonably have considered this possibility, among several others, in adopting the ordinance in question.
I find singularly unpersuasive the majority’s invocation of the constitutionality of the display of the Venus de Milo. The ordinance in question is directed at waiters and entertainers in establishments “which serve food or beverages.” Its target is live entertainment in bars, saloons and restaurants, not sculptures in museums. The Louvre in Paris and the Hiphugger in San Jose are separated by more than geography.
Given the various legitimate and compelling objections to the commercial exposure of the intimate parts of women’s bodies, it is clear that the state and its local subdivisions have substantial and demonstrable interests in regulating the commercial exploitation of female nudity in a nontheatrical setting. It is legally and constitutionally appropriate for local communities to conclude that the factors of morality, the general welfare, the sensitivities of women, and public health and safety outweigh the “free speech” right of dancers to remove their clothes, if any such constitutional right exists.
In short, contrary to the majority, there has been no change in “later decisions” of the Supreme Court. Several legitimate and recognized public concerns amply support and justify the county ordinance which my *579colleagues unfortunately invalidate. Our Crownover rationale remains as valid today as it was in 1973.
I would deny the writ.
Reynoso, J., concurred.