(dissenting). I respectfully dissent from part 5 of the majority opinion. The plaintiffs adequately have raised the issue of the overbreadth of Regulation 13 and have presented sufficient argument to allow us to reach a determination of that question. I conclude that the regulation imposes a real and substantial deterrent to the exercise of rights protected by arts. 16 and 19 of our Declaration of Rights, and that we cannot ensure the protection of those rights by interpreting the regulation so as to limit its application to unprotected activity. Under this view, the plaintiffs simultaneously satisfy the requirements for establishing standing to assert the overbreadth claim and for succeeding on the merits of that claim.
Regulation 13 provides, in part, that entertainers in establishments subject to the jurisdiction of the Boston Licensing Board “must not be allowed to mingle with or circulate among the patrons.” I agree with the court’s conclusion that this language is not vague. The defendant commission sets *558forth in its argument the definition of “mingle”: “[t]o associate or unite, ... to join in company,” and the definition of “circulate”: “to move, pass, or go around freely from person to person or from place to place.” The plaintiffs argue that to “mingle” is to “become closely associated; join or take part with others.” While mingling or circulating thus encompasses a wide variety of interpersonal associations implicating such activities as speaking or listening, it cannot be said that a person of common intelligence would be unable to understand the meaning of the regulation. To the contrary, the regulation clearly proscribes any kind of off-stage association or dialogue between an entertainer and a patron. What remains to be determined is whether such a broad regulation impermissibly impairs the exercise of protected rights of speech or association.
As a preliminary matter, the majority opinion briefly inquires into potential sources of rights of an associational or expressive nature. The usual source of such rights, the First Amendment to the United States Constitution, is found to be inapplicable to this case because of the Twenty-first Amendment and the holdings of the Supreme Court in Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), and California v. LaRue, 409 U.S. 109 (1972). I think such a conclusion is premature and, perhaps, unwarranted.1 The majority opinion goes on to recognize, however, that art. 16 of the Declaration of Rights of the Constitution of the Commonwealth2 *559provides an independent source of rights similar in scope to portions of the First Amendment and not affected by a qualifying provision analogous to the Twenty-first Amendment. See Commonwealth v. Sees, supra. Although the plaintiffs in their briefs refer repeatedly to their rights of speech and association under the State as well as Federal Constitution, they make no specific reference to art. 16. I agree with the majority that this oversight should not bar our consideration of the important constitutional issues presented under art. 16, but I should think that the same considerations would apply with equal force to art. 19 of the Declaration of Rights of the Constitution of the Commonwealth.3 The cursory analysis of art. 19 by the majority appears inconsistent with their extended discussion of art. 16. Such disparate treatment seems to me unneccessarily to postpone elucidation of a previously uncharted area that has been put directly in issue in the instant case.
Grounding their analysis solely on art. 16, the majority preliminarily conclude that the activities engaged in by the entertainers in this case did not involve “expressive conduct.” The opinion goes on, however, to consider the “significant governmental interest” involved in the suppression of the entertainers’ activities, as well as to introduce elements of “time, place, and manner” and “commercial” speech doctrines. Invocation of these analytical tools strongly suggests that certain individual rights of speech and association, other than the right to expressive conduct, have survived the majority’s preliminary analysis and are being weighed against the governmental interests. If no such individual rights had survived, the State could impose any rational form of regulation within the bounds of other constitutional prohibitions, and reference to higher standards of State justification or to free speech doctrines would be un*560necessary. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60-61 (1973). However, the nature of the surviving individual rights is not made explicit in the opinion, thereby confusing rather than clarifying the scope of art. 16.
Additionally, countervailing governmental interests identified by the majority are deduced by means of what I view as a questionable exercise of judicial notice. Without basis in the record, the majority find that: (1) the solicitation of drinks implies that the entertainer is making some “service” available, (2) solicitation and the provision of such a service are encouraged or even required by the employer (thereby presumably transforming the activity from private conduct to commercial conduct), and (3) the whole process is a prelude to, or pretense for, solicitation to engage in sexual activity. Moreover, the majority’s ultimate conclusion — that there is a significant governmental interest in preventing the solicitation of drinks — appears to be based substantially on the rationale that upholding a blunderbuss attack on constitutionally protected interests will prevent the escalation of such activity to more dangerous or undesirable conduct. I am not willing to embrace the general proposition that the State may anticipate criminal conduct and stop it from developing by imposing restrictions on activities that implicate constitutional rights of free speech or association.
The State arguably can regulate or prohibit the solicitation, or “hustling,” of drinks by employees of a licensed establishment; such solicitation may not be the type of speech or association that is protected under art. 16 or art. 19. The State could prohibit solicitation for prostitution, sales above legal maximum prices, misleading and unlawful trade practices (cf. G. L. c. 93A), and a variety of other unlawful acts, all of which is conceded by the plaintiffs. The regulation in question does not, however, provide that “entertainers must not be allowed to solicit drinks from patrons.” Regulation 13 provides that “entertainers must not be allowed to mingle with or circulate among the patrons.” This fact requires that the plaintiffs’ overbreadth claim be closely examined, and it is on this point that I find myself most seriously in disagreement with the majority.
*561As a matter preliminary to a discussion of the overbreadth question, it is important to address specifically the intimation in the majority opinion that the regulation is directed to “commercial” speech or conduct. This is clearly not the case, as a few examples will demonstrate. Between performances at the Two O’clock Lounge, a performer might wish to join a group of friends engaged in a conversation regarding the recent rulings of this court on the subject of nude dancing or mingling. Regulation 13, on its face, prohibits such activity. The same prohibition would apply to Pete Seeger, the late Phil Ochs, or any other entertainer who accepts an engagement at the Two O’clock Lounge or other establishment under the jurisdiction of the Boston Licensing Board. There is absolutely no basis for assuming that all forms of speech or association undertaken by one who entertains at a licensed establishment are directed at furthering commercial interests, and no such showing has been made in this case. The fact that a discussion takes place in a bar or a restaurant does not automatically transform that discussion into commercial speech.
The plaintiffs clearly and forcefully advance the over-breadth argument at several points in their brief and reply brief. They attack Regulation 13 as being overbroad in that it does not “define an offense which the licensees may distinguish from constitutionally protected conduct such as speech and association of their employees with their customers.” The majority opinion explicitly recognizes the availability of an overbreadth attack in furtherance of rights protected by art. 16, and indicates that the overbreadth doctrine under art. 16 is “similar” to that developed by the Supreme Court in the First Amendment area. Nevertheless, the majority conclude that these plaintiffs lack standing to invoke the overbreadth doctrine, and provide three reasons for this conclusion.
The first reason given is that the plaintiffs have not shown that Regulation 13 imposes a “real and substantial” deterrent to the exercise of art. 16 rights. This is, I believe, the most substantial reason, and discussion of it is deferred mo*562mentarily. The second reason is that the plaintiffs have offered no evidence to support the overbreadth claim. The theory underlying the First Amendment facial overbreadth doctrine was succinctly stated in Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973): “Litigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression” (emphasis added). Under such a view, it is difficult for me to imagine what kind of “evidence” the majority fault the plaintiffs for not introducing. Surely, the plaintiffs need not “prove” that others not before the court are inhibited from exercising their constitutional rights by the broad language of Regulation 13. What purpose could be served by introducing the testimony of an entertainer that a prohibition on mingling with patrons makes it difficult to associate or speak with the patrons?
The third reason given by the majority is that the plaintiffs have not suggested in their briefs any hypothetical set of facts that would support their overbreadth claim and have not made specific argument on the subject. In my view, the plaintiffs’ briefs very adequately suggest the general nature of the problem, and it takes no great leap of imagination to construct hypothetical sets of facts or examples such as I have offered above.
I return now to the first reason stated by the majority for holding that these plaintiffs do not have standing to invoke the overbreadth doctrine — that they have not shown that Regulation 13 imposes a “real and substantial” deterrent to the exercise of rights protected by art. 16. This standard, employed by the majority to reject the plaintiffs’ standing, is identical to the standard applicable to a decision on the merits of the overbreadth claim. In other words, had the plaintiffs shown a “real and substantial” deterrence, they would at once have established standing and prevailed on the merits. The “real and substantial” standard was announced by the Supreme Court in Broadrick: “[Particular*563ly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” 413 U.S. at 615. It is not apparent to me that the Broadrick standard is applicable here where the prohibition against mingling “directly” affects rights of “pure” speech and association. (Compare the majority opinion at n.5.) Assuming that it does apply, I think the deterrent effect of Regulation 13 is clearly real and substantial.4 The terms “mingle” and “circulate” potentially implicate rights of expression and association; Regulation 13 applies to all licensed establishments where entertainment is provided; the regulation is in effect at all times that the establishment is open for business; and the penalties for violating the regulation are severe. The majority provide no analysis to justify a conclusion that the operation of Regulation 13 imposes no real or substantial deterrent to the exercise of art. 16 or art. 19 rights.
A conclusion that a statute or regulation sweeps within its literal meaning protected expression does not generally require that the statute or regulation be struck down. The preferred course, when possible, is to construe the statute or regulation so as to narrow its impact and avoid interference with protected rights. See Commonwealth v. Bohmer, supra at 374 (1978); Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976). I do not understand the majority opinion as having attempted any such narrowing of the sweep of Regulation 13. Moreover, I doubt whether any narrow construction of the words “mingle” or “circulate” could be judicially provided without involving this court in what would be essentially a legislative task.
I would hold the regulation facially overbroad. Therefore, I dissent.
The type of speech or conduct encompassed by the term “mingling” must surely be distinguished from the “bacchanalian revelries” subject to regulation in LaRue. 409 U.S. at 118. Moreover, the Supreme Court has repeatedly rejected the broad proposition that the First and Fourteenth Amendments are inapplicable to liquor establishments within the umbrella of the Twenty-first Amendment. Id. Doran v. Salem Inn, Inc., 422 U.S. at 932. See Opinion of the Justices, 373 Mass. 888 (1977). The “mingling” issue was not passed on directly by the Supreme Court in either La-Rue or Doran.
“Article XVI. The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.” (As amended by art. 77 of the Amendments.)
“Art. XIX. The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good: give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”
Broadrick does not define the term “substantial” in the context in which it is used, nor do subsequent Supreme Court cases clarify the situation. The term could have a variety of meanings.