Conduct is not Speech - Non expressive conduct, in the context of a performance, is not speech and may be proscribed even if not obscene nor may the "speech" of a performance be used as a redemptive vehicle for obscene or indecent conduct.

Public Nude Sexual Conduct may be Regulated - The regulation of public and undisciplined sexual conduct is clearly within the police power of the state. The legitimate interest of the government in maintaining public order and decency has to be balanced against the constitutional protection afforded to some nudity as a means of expression. The state has greater constitutional power to regulate non-verbal physical conduct than it has to regulate speech. "Indecent Exposure" statutes and ordinances have been applied with varying results.

Nude Dancing is a form of Expression Subject to or Free from Regulation Dependent on Content or Context - While nudity per se is not obscene and nude dancing is a protected form of expression such dancing may be proscribed as a violation of public indecency statutes or of the laws against obscene performances. In addition it is subject to the usual time, place and manner restrictions that may be placed on speech. The Twenty-first Amendment giving the states authority to regulate the traffic in alcoholic beverages, has the same dignity as the First and Fourteenth Amendments and is sufficient to permit states or cities to completely ban nude performances in places where alcoholic beverages are dispensed. California v. LaRue, 409 U.S. 109 (1972)and New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981).

Licenses may be Required for Nude Performances - An ordinance which does not prohibit nudity, but merely requires a license for it's use as entertainment is valid. Permits for the location of nude performances do not violate constitutional freedoms absent standardless discretion in administrative officials to refuse the same.

Prior Restraints - Since a nude performance is a form of expression it is normally impermissible to exert prior restraint, but the requirement of a license is not an invalid prior restraint. Nor does an arrest by a police officer during a performance constitute such a restraint.

Vagueness Due Process Principles Apply to Nude Performance Ordinances - The general principle that a vague law is not binding applies to nude performances. Authoritative Construction of a statute or ordinance may cure problems of vagueness.

Equal Protection Due Process Principles Apply to Nude Performance Ordinances - Where an ordinance regulating nudity is applied only to bars and coffee shops and not to other establishments, it violates the Due Process clause, but an ordinance which has a rational basis for exempting theaters and concert halls will be upheld.

Since Nude Performances are Presumptively Protected, Any Regulating Statute or Ordinance Will be Scrutinized for Overbreadth - An anti-topless ordinance which broadly prohibits obscene and non-obscene performances will be held overbroad.

A State Must Prove Scienter - As in other obscenity trials the state must show that the defendant, if other than the actor, possessed the necessary scienter. Performers are presumed to have the necessary knowledge.

Prior Judicial Scrutiny and Warrant Not Required - Since each "nude performance" differs from the last there is no mass seizure or its equivalent so as to require prior judicial scrutiny nor is there any reason to obtain a warrant since the crime is committed in the officer's presence, there is no seizure of the performance and performer may post bail and resume his or her "expression."