dissenting.
There is one issue in this case. Did the legislature, by its enactments, intend that places of aduit entertainment, such as Old Chelsea Theatre in Portland, be allowed to offer live entertainment consisting of nude dancing women exposing their genitals for the purpose of sexually arousing its customers? The facts posed in the question are stipulated to by both parties.
The defendants were convicted of violating ORS 163.465, which provides:
"(1) A person commits the crime of public indecency if while in, or in view of, a public place he performs:
"(a) An act of sexual intercourse; or
"(b) An act of deviate sexual intercourse; or
"(c) An act of exposing his genitals with the intent of arousing the sexual desire of himself or another person.
"(2) Public indecency is a Class A misdemeanor.”
The defendants argue that such a theater, which admits only persons over 18 years of age who are aware of the type of performance before entering at $5 per head, is not a public place.
*179ORS 161.015(9) provides:
"(9) 'Public place’ means a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation.” (Emphasis added.)
ORS 163.465 and 161.015(9) were both enacted as part of the Oregon Criminal Code of 1971.
Assuming, while not conceding, that the above definition of "public place” is ambiguous, we turn to the intent of the legislature in construing the language of the statute. The Minutes of the Criminal Law Revision Commission, Subcommittee No. 2, October 22, 1969, show:
"Representative Carson assumed the provisions of the section would not apply to something like Bullfrog Four or Woodstock because neither would be classed a 'public place’. Mr. Wallingford thought they would apply in that these festivals would be classed a 'public place’ because the general public has access. It would be the same as a theatre. Senator Jemstedt commented that the adoption of the section would apparently eliminate the appearance of certain types of plays in the state.
"Mr. Wallingford did not think subsections (1) and (2) [paragraphs (a) and (b), subsection (1), ORS 163.465] would apply because even in the most avant-garde plays, the acts are simulated. Subsection (3) [paragraph (c), Subsection (1), ORS 163.465] would apply only if the act was done with the desire to sexually arouse the audience.” (Emphasis added.)
Thus, it is clear from the legislative history that the members of the legislature intended that "public place” would include a so-called theater as a public place.
The majority opinion points out that "[i]t was necessary for any individual to pay a fee of $5 to gain admission to the theater” and that the "patrons are *180forewarned.” This seems to be beside the point as the statute defines "public place” as one where "the general public has access.” The fact that admission was charged is of little consequence. The charge of admission could be placed at 10 cents. Also, one could be forewarned of an unlawful act but this would not prevent it from being accessible to the public.
Based on the defendants’ stipulation of the facts, it would appear that they are each guilty of the crime of public indecency as defined in ORS 163.465(c) by committing the said acts in "a place to which the general public has access.”
The defendants also contend that the stipulated type of nude dancing is a form of communication which is protected by the First Amendment and, therefore, such "dancing may not be restricted without a finding that it is obscene.” The United States Supreme Court has reiterated its position that some types of nude dancing are within the protection of the First Amendment but may be regulated in places where alcohol is sold under the Twenty-first Amendment. See California v. La Rue, 409 US 109, 93 S Ct 390, 34 L Ed 2d 342 (1972), which states:
" 'We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech” whenever the person engaging in the conduct intends thereby to express an idea.’ 391 US, at 376, 20 L Ed 2d 672.” 409 US at 117-18.
In Doran v. Salem Inn, Inc., 422 US 922, 95 S Ct 2561, 45 Led 2d 648 (1975), the Supreme Court affirmed the lower court’s granting of an injunction against authorities which would have restricted non-obscene conduct in the form of topless dancing. No court has yet pronounced that the acts stipulated to in the within case are "non-obscene” and they would be contrary to ORS 167.062, adopted by the 1973 legislature and approved by the voters at the general election in November of 1974.
I cannot accept the view that the type of conduct *181performed in this case has anything to do with free speech. The dancing may express an idea to the viewers but it could only be one of obscenity. To say that the Old Chelsea is a theater stretches the imagination. It might be a place of "amusement” to some.
For the above reasons I would affirm the Court of Appeals, which upheld the conviction of the defendants in the lower court.