Judicial opinions treating statutes similar to Resolution 21436 enumerate other protected activities that could be prohibited by such a statute, including operas, educational exhibitions, and African and other ethnic dances. See People v. Nixon, 86 Misc.2d 564, 382 N.Y.S.2d 909, 912 (Yonkers City Ct.), aff'd, 88 Misc.2d 913, 390 N.Y.S.2d 518 (Sup.Ct. 1976); Crownover v. Musick, 9 Cal.3d 405, 437, 107 Cal.Rptr. 681, 702, 509 P.2d 497, 518 (1973) (Tobriner, J., dissenting), cert. denied sub nom. Reynolds v. City of Sacramento, 415 U.S. 931, 94 S.Ct. 1443, 39 L.Ed.2d 489 (1974). Thus it seems clear that Resolution 21436 would prohibit instances of communicative activity protected by the First Amendment; therefore, the resolution is overbroad.
It should be noted that section 245.01 Penal of the Penal Law prohibits exposure of female breasts in public places unless the female is performing in a play, exhibition, show or entertainment; however, the same statute permits cities, towns and villages to adopt local laws prohibiting exposure in performances. Whether such local laws can withstand constitutional challenge is an open question in light of Salem Inn. (See People v Nixon, 86 Misc.2d 564, affd 88 Misc.2d 913.) Nevertheless, it is most significant that in the Salem Inn case the court summarized its decision in a prior case, California v LaRue ( 409 U.S. 109) in the following words: "In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a state could therefore ban such dancing as a part of its liquor license program."