(dissenting) — To resolve this case we must inquire into the gray area between appropriate legislative regulation of morality and unconstitutional encroachment on human liberty. While the history of modern government has reflected the struggle with the extent to which morality can be legislated and subsequently enforced, J. Mill, Prefaces to Liberty 241 (1959); P. Devlin, The Enforcement of Morals (1965); H. Hart, Law, Liberty, and Morality (1963), it is the Legislature which must initially define the will of the public. The constitution is our only guide in passing on such legislation, and its insistence upon reasoned, consistent regulation frames our inquiry.
The majority opinion is incorrect inasmuch as it erroneously upholds the trial court's refusal to permit appellants to demonstrate their activity was not obscene and therefore not proscribed by Seattle's lewd conduct ordinance. The majority also mistakenly imposes a narrowing construction on Seattle's body studio ordinance, which the ordinance does not contemplate. And finally, the narrowing construction imposed by the majority does not itself pass constitutional muster.
Lewd Conduct Ordinance
The majority opinion upholds the trial court's ruling on respondent City's motion in limine denying appellants the opportunity to submit evidence that their activity was *72communicative. Although appellants' contention may strain credulity, the only issue is whether appellants should be given any opportunity to present evidence as to whether their conduct was protected by the First Amendment. We do not reach the issue of whether the conduct, if communicative, was protected by the First Amendment.5 The only question is whether the trial court was correct in foreclosing inquiry into the entire area regardless of the merits of appellants' proffered evidence.
I
Appellants' reason for presenting such evidence was to demonstrate that their activity was not obscene and thus not subject to proscription by the lewd conduct ordinance. Seattle Criminal Code (hereinafter SCC) 12A.10.070.
The majority cites Seattle v. Buchanan, 90 Wn.2d 584, 584 P.2d 918 (1978), in which we held Seattle's lewd conduct ordinance not unconstitutionally overbroad, as authority for dispensing with appellants' claim. In doing so, the majority fundamentally misconceives the difference between a claim that a statute is unconstitutionally over-broad and a claim that a statute is unconstitutional as applied to a party. Here, appellants claim that Seattle's lewd conduct ordinance is unconstitutional as applied to them. A ruling by this court that Seattle's lewd conduct ordinance is not unconstitutionally overbroad is irrelevant to appellants' "as applied" claim. All statutes that are not unconstitutionally overbroad are capable of unconstitutional application. L. Tribe, American Constitutional Law 711 (1978). As the majority concedes, the Buchanan case *73did not involve a claim that the proscribed activity was expression protected by the First Amendment; this case does involve such a claim. By holding in Buchanan that Seattle's lewd conduct ordinance is not unconstitutionally overbroad, we stated only that the ordinance did not by its terms proscribe constitutionally protected activity. This holding is irrelevant to a claim that a particular application of the ordinance goes beyond its contemplated scope and unconstitutionally proscribes activity protected by the First Amendment.6 Therefore, appellants' ability to present evidence that their activity was communicative was crucial to their claim that the ordinance was unconstitutionally applied to them. The trial court's ruling refusing admission of such evidence was thus reversible error.
II
The majority deals separately with appellants' claim that if they were allowed to present evidence that their activity was communicative such evidence would have established that appellants' activity was exempt under the "artistic or dramatic performance" exemption of the ordinance. SCC 12A.10.070(D). The majority's analysis of this separate claim is flawed in two major respects.
A
The majority refuses to consider appellants' claim that their activity was exempt under the ordinance because, it argues, appellants raised this claim for the first time on appeal. In truth, appellants' claim that they are exempt is precisely the same as their claim raised at trial that their *74activity was not obscene (discussed in part I, supra). In Buchanan, we held that Seattle's lewd conduct ordinance was not overbroad because it provided for an exemption for artistic and dramatic performances protected under the First Amendment. Cf. Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975) (court found ordinance overbroad because it lacked any exemption for performances protected by the First Amendment). To maintain a coherent and consistent jurisprudence in this area of regulation, the lewd conduct ordinance's exemption must be viewed as coextensive with protection of expressive activity that is not obscene. For the reasons articulated below, the obscenity standards adopted by our court in State v. Regan, 97 Wn.2d 47, 640 P.2d 725 (1982), must be applied to the Seattle lewd conduct ordinance's exemption for artistic or dramatic performances to integrate our holdings in the obscenity area with the type of regulation contemplated by the ordinance here.
There can be no question that the State has the power to regulate lewd conduct and indecent exposure. Nevertheless, such regulation must exclude expressive conduct within the protective ambit of the First Amendment. Seattle's ordinance purports to exclude such protected expression through its exemption for artistic or dramatic performances. Such performances are protected only if they are not obscene. The simple fact that they occur in theaters or museums does not insulate performances from regulation. At the same time, a theater or museum is not the only place where conduct regulated by Seattle's ordinance may receive the protection of the First Amendment. Whether the activity is a movie or a live performance, the State's concern for public morality is the same. As to movies and other depictions or descriptions of sexual conduct, we have adopted obscenity standards for ascertaining the permissible scope of regulation. State v. Regan, supra. While the ordinance here regulates live conduct as opposed to "depictions or descriptions" of that conduct, the City has introduced no evidence that its purported interest in public *75morals is any different from the State's interest with regard to obscenity regulation.7
The majority and concurring opinions justify the lewd conduct ordinance as protecting the State's interest in public welfare and morals. No attempt is made in these opinions to differentiate that state interest from the State's interest in regulating obscenity articulated by the United States Supreme Court in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973) as "the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself." Although the government interest may vary in strength based on whether the regulation is of conduct or depictions or descriptions of conduct, the degree of strength will only affect the balance and not the standards by which that balance is achieved. We must therefore construe the ordinance's exemption as protecting nonobscene expression that may not otherwise be proscribed by the State.8
*76Since appellants claim that their activity is communicative and within the artistic or dramatic performance exception to the lewd conduct ordinance, proscription of their activity may not be analyzed simply as a regulation of conduct.9 We must provide the same scrutiny of appellants' activity that we provide for allegedly obscene materials. Appellants' behavior may well be unprotected by the First Amendment and proscribable under this ordinance, but we cannot make judgments about such behavior by using facile devices that refer only to whether the performances occur *77in a theater or museum. See Seattle v. Buchanan, supra at 616 (Horowitz, J., dissenting). Our obscenity standards (however difficult of application) have been established to provide a uniform methodology for determining if depictions or descriptions of sexual conduct are protected by the First Amendment. They are equally appropriate in analyzing regulation of sexual conduct that is expressive, when the State has articulated no additional interests that might affect the balance. Thus, the proscribed conduct here "must be considered as a part of the whole work." Erznoznik v. Jacksonville, 422 U.S. 205, 211 n.7, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975), citing Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Many courts have so held. See Birkenshaw v. Haley, 409 F. Supp. 13 (E.D. Mich. 1974) ; State v. Walker, 568 P.2d 286 (Okla. Crim. App. 1977); Dominguez v. Tulsa, 539 P.2d 758 (Okla. Crim. App. 1975) . See also Finer & Grant, Regulation and Prohibition of Sensual Performances Under Nonobscenity Statutes, 10 Crim. L. Bull. 717 (1974). Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975) (district court found the play "Hair" obscene under state statutes, but Supreme Court did not reach issue in deciding the case on prior restraint grounds).
In sum, appellants' claim that their activity was not obscene and that their activity was within the ordinance's exemption are one and the same claims. It cannot fairly be said, as the majority contends, that appellants' exemption claim was raised for the first time on appeal since that claim is the same as appellants' allegation at trial that their activity was not obscene.10
*78B
Even if I were to ignore the above discussion and were to agree with the majority that appellants raise their exemption claim for the first time on appeal, the majority's decision not to consider appellants' claim is against the weight of our decisions regarding claims raised for the first time on appeal.
Appellants claim that the trial court's refusal of evidence as to the communicative nature of their activity denied them the constitutional right to show their activity was protected by the First Amendment and within the ordinance's exemption for dramatic or artistic performances.
In addition, appellants argue that it was the prosecution's duty to prove beyond a reasonable doubt that appellants' activity was not within the ordinance's exemption for dramatic or artistic performances. Clearly, the prosecution must prove every element of an offense beyond a reasonable doubt. See Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979); Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); State v. Hanton, 94 Wn.2d 129, 614 P.2d 1280 (1980). Section 12A.02.130(C) of the Seattle Criminal Code states "A defense is affirmative, within the meaning of subsection B1 when it arises under a section of this subtitle which so provides.” (Italics mine.) See Seattle v. Shepherd, 93 Wn.2d 861, 613 P.2d 1158 (1980). The Seattle lewd conduct ordinance, SCC 12A.10.070 does not state that its exemption provision is an affirmative defense. As such, the prose*79cution had the burden of proving appellants' activity was not within the ordinance's exemption provision. The prosecution's failure to so prove, and the trial court's failure to permit appellants to go forward with evidence intended to prove appellants were within the ordinance's exemption, appears to have denied appellants due process.
Thus, with respect to the question of whether appellants are within the ordinance's exemption, appellants claim not only a loss of First Amendment rights but of due process rights. Where a litigant raises a constitutional issue for the first time on appeal, we have held that we will hear that constitutional claim. State v. Green, 94 Wn.2d 216, 231, 616 P.2d 628 (1980). The majority's refusal to consider appellants' claim that their activity was within the ordinance's exemption for artistic or dramatic performances is thus baseless.
Body Studio Ordinance
The majority holds that Seattle's body studio ordinance, SCC 12A. 10.080, is not unconstitutionally overbroad.11 Although the majority concedes that " [t]he language of the body studio ordinance does not limit its reach", it adopts the municipal court's saving construction of the ordinance, to the effect:
No reasonable person reading the terms "body painting studio", "model studio", "sensitivity awareness studio", and "paint, massage, feel, handle, or touch the unclothed body" could conclude that it related to a dramatic production. Many plays and ballet performances involve much touching but the drama and the dance are central to the performance. The touching is incidental. "The statute must be given a reasonable construction to avoid absurd consequences", State v. Cann, 92 Wn. 2d 193 (1979).
The majority's adoption of this narrowing construction is misconceived both as to the appropriateness of a narrowing construction in this case and as to the scope of that con*80struction once made.
I
As an initial matter, the majority cannot mean to adopt the municipal court's conclusion that "by its own terms" the ordinance "does not apply to any protected expression." Since the majority states the language of the ordinance "does not limit its reach," the ordinance is unconstitutionally overbroad "by its own terms." The majority must mean only that a reasonable inference from the terms of the ordinance will save it from unconstitutional overbreadth. The question remains whether the limiting construction of the terms of the ordinance is a reasonable inference from its terms.
The majority's adopted construction attempts to narrow the ordinance in two ways. First, the construction states that "[n]o reasonable person reading the terms 'body painting studio', 'model studio', 'sensitivity awareness studio', and 'paint, massage, feel, handle, or touch the unclothed body' could conclude that it related to a dramatic production." While that assertion may be true, the ordinance makes clear that a body studio is "any premises . . . upon which is furnished for . . . consideration the opportunity to . . . observe, view or photograph . . . paint[ing], massag[ing], feel[ing], handling], or touching] the unclothed body or an unclothed portion of the body of another person . . ." SCC 12A.10.080(A). The terms "body painting studio", "model studio", and "sensitivity awareness studio" are not, as the municipal court construction implies, requisite to the definition of a body studio.12 Since the terms are unnecessary to the definition, they do not help narrow the scope of the definition. Under the express terms of the ordinance, viewing for consideration the *81touching of an unclothed portion of a person's body makes the premises where such events occur a "body studio."
While a reasonable person might not assimilate the term "body studio" with a place for dramatic performances, the phrase is entirely a creature of the ordinance and gains definition solely from the terms of the ordinance. The ordinance defines "body studio", inter alia, as premises where one can view for consideration the touching of an unclothed portion of the body. The question the majority does not address is whether a reasonable person might assimilate that definition with a place for dramatic performances.
II
The majority’s adopted construction goes on, however, and purports to narrow the scope of the ordinance's broad definition, discussed above. The construction focuses on the distinction that in a dramatic or artistic performance the drama or art "is central" while the "touching is incidental," and that the ordinance is not intended to regulate incidental touching. The ordinance makes no reference at all to this central/incidental distinction; we must assume the majority is imposing this saving construction on the ordinance's definition of "body studio" so to avoid the proscription of constitutionally protected expression. But from whence does the distinction the majority embraces emanate? By what authority does the central/incidental distinction arise? Is it a workable standard? And above all, is it constitutional? The majority answers none of these questions.
In Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975), the Court found unconstitutionally overbroad a local ordinance banning topless entertainment. In Seattle v. Buchanan, 90 Wn.2d 584, 598, 584 P.2d 918 (1978), we cited Doran with seeming approval in stating: "The ordinance under consideration there made no allowance at all for artistic performances. For this reason, the Supreme Court found it overbroad." Distinguishing Seattle's lewd conduct ordinance from the ordinance in *82Doran, we went on to state:
Since the ordinance here specifically makes allowance for artistic performances in appropriate establishments, it is not open to the criticism which caused the court to strike down the ordinance in Doran v. Salem Inn, Inc., supra.
Buchanan, at 600.
The majority's construction here attempts to remedy the absence of a dramatic or artistic performance exemption in the body studio ordinance through its central/incidental distinction. Artistic or dramatic performances are exempted by the body studio ordinance, so the argument proceeds, because the ordinance does not contemplate regulation of premises where the "touching is incidental." Following the majority's inventive narrowing construction, why could have not the Court in Doran narrowly construed the ordinance there to exclude topless performances where the toplessness was "incidental" to the performance? While the United States Supreme Court certainly had the inherent power to provide such a narrowing construction, it declined to do so. I might conjecture the Doran Court declined to make such a narrowing construction "perhaps because a rewriting of the ordinance would be necessary to reach that result." Erznoznik, at 216 n.15.
Even if I were to assume that a narrowing construction is appropriate here, the central/incidental distinction which is the basis for the majority's narrowing construction does not narrow the scope of the ordinance in a constitutional manner. The majority's construction of the body studio ordinance provides an exemption for fewer activities than does the lewd conduct ordinance since the lewd conduct ordinance does not require that the drama or art be central to the performance. Yet, just as the exception to Seattle's lewd conduct ordinance must be read in light of our obscenity standards (see discussion supra in part II A), so any judicially created exception to the body studio ordinance must be read in light of those standards. While the central/incidental distinction may be a factor in the *83obscenity balance, it does not define that balance.
Thus, not only is the majority's narrowing construction uncontemplated by the terms of the body studio ordinance, the scope of the construction is not narrow enough to pass constitutional muster. No regulation that by its own terms controls expression protected by the First Amendment can be saved by the central/incidental distinction the majority proffers through its adoption of the municipal court's construction. Without demonstrating a compelling interest different from the State's interest in regulating obscenity, the City of Seattle may not regulate more restrictively than would be permitted by application of the State's obscenity statute, where the conduct regulated is communicative and implicates the First Amendment.
Appellants were prepared to present extensive evidence in its favor. A number of experts were prepared to testify that the purpose of appellants' organization was to accept one's sexuality. A prominent sexologist who helped design the show at the Temple of Venus was prepared to state the purpose of the live show was to provide an example of a spontaneous warm and sensual experience. Professor Pepper Schwartz of the University of Washington's sociology department was prepared to testify that the Temple of Venus represented a group of people sincerely committed to human liberation through relaxation of sexual inhibitions and taboos.
See California v. LaRue, 409 U.S. 109, 119 n.5, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972), where the Court stated:
'Because of the posture of this case, we have necessarily dealt with the regulations on their face, and have found them to be valid. The admonition contained in the Court's opinion in Seagram & Sons v. Hostetter, 384 U. S. 35, 52 (1966), is equally in point here: 'Although it is possible that specific future applications of [the statute] may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise. We deal here only with the statute on its face. And we hold that, so considered, the legislation is constitutionally valid."
It is true that when regulation is based on the police power attendant to liquor licensing, the State is conferred with "something more than the normal state authority over public health, welfare, and morals." LaRue, at 114. In such circumstances, nonobscene activity may be regulated. Id.; Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975); Seattle v. Hinkley, 83 Wn.2d 205, 517 P.2d 592 (1973). At the same time LaRue implies that unless the Twenty-First Amendment is implicated, the State is limited to regulation of the obscene. See New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 69 L. Ed. 2d 357, 101 S. Ct. 2599 (1981). The State's interest in liquor licensing is obviously not present here.
Where there is no claim that the proscribed conduct is expressive, such conduct is outside the ambit of First Amendment protection; thus lewd conduct and indecent exposure laws are generally valid. As the late Justice Douglas stated:
No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.
Roth v. United States, 354 U.S. 476, 512, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957) (quoted by Justice Stafford in his concurrence to this case). And as the United States Supreme Court stated in Erznoznik v. Jacksonville, 422 U.S. 205, 211 n.7, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975):
Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. See Miller v. California, 413 U. S. 15, 24 (1973); Kois v. Wisconsin, 408 U. S. 229 (1972). In this respect such *76nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws.
Even where conduct regulated under such laws implicates the First Amendment, application of the obscenity standards will not dictate exemption under Seattle's lewd conduct ordinance. Furthermore, where the State's interest focuses on protecting minors, the scope of regulation is broader than under the traditional obscenity standards applicable to adults. Erznoznik v. Jacksonville, supra; Ginsberg v. New York, 390 U.S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968). The invasion of privacy, see FCC v. Pacifica Found., 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978), or the protection of privacy, see Stanley v. Georgia, 394 U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969), may also inform the scope of proscription under the obscenity standards. None of these concerns has been articulated in this case, however.
Although the analysis in the concurrence is appropriate to the overbreadth of the lewd conduct ordinance, it is not pertinent to appellants' claim that the ordinance was unconstitutionally applied to them. The concurrence is correct in its statement that conduct that is communicative "is not thereby shielded from government regulation", concurrence at page 66, and our obscenity standards reflect just such an approach. Depictions or descriptions of explicit sexual conduct may be proscribed if they lack serious literary, artistic, political or scientific value when "taken as a whole." They need not be utterly without redeeming communicative value. The analysis in the concurrence leads to the conclusion that Seattle's lewd conduct ordinance is a valid regulation of conduct that is communicative since the ordinance's exemption for artistic or dramatic performances saves from regulation all constitutionally protected expressive conduct. Although this conclusion is correct, it defines only the beginning of the problem. No conclusion as to the ordinance's general validity justifies the trial court's exclusion of evidence as to whether appellants' conduct was exempt under the ordinance. The citation in the concurrence to Bradbury v. Aetna Cas. & Sur. Co., 91 Wn.2d 504, 512, 589 P.2d 785 (1979) as authority for appellants' waiver of this claim does not solve the problem. That case involved a nonconstitutional claim. This case involves constitutional claims that may be raised for the first time on appeal. See State v. Green, 94 Wn.2d 216, 231, 616 P.2d 628, 637 (1980), and discussion in part II B, infra.
While refusing to reach the question of the trial court's refusal to permit appellants to present evidence that their activity was communicative and within the ordinance's exemption provision, the majority nevertheless comments in dicta that such a claim would at any rate be baseless since the trial court found that the performances did not take place in a theater. Neither the municipal nor the Superior Court made such a finding. Although each court stated the activity in question occurred on a bed, neither court found that the bed was not a theater. Such a finding is a mere extrapolation by the majority. Its statement that ''The lower court's finding that the Temple is not a theater is supported by substantial *78evidence" is actually a finding of fact by the majority itself. Not only is the majority not authorized to make such a finding, it lacked the evidence to do so. Since the trial court barred evidence on precisely this issue, a finding of fact— even if it had been made by the trial court — would be of no weight or consequence on review. Finally, and more fundamentally, the question of whether or not appellants' conduct took place in a theater should not be dispositive of an obscenity determination. A theater is neither the exclusive province of nonobscene protected activity nor does it shield obscene conduct from legislative regulation. By dictating that the work must be judged "as a whole," the obscenity standards indicate that the place where the performance occurs is only one of many factors that contribute to an obscenity determination.
The ordinance is set out in full on page 61, footnote 2 of the majority opinion.
In discussing these terms, the ordinance uses the conjunctive "and shall include", which does not restrict but only adds to the scope of the ordinance. As an example, "Temple of Venus" is not even similar to the titles enumerated in the ordinance, but the City argues here that the Temple is nevertheless within the intended reach of the ordinance because people could view for consideration the touching of human bodies on the Temple's premises.