*203***978**298 Eleanor Fink, New York City, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens, (Beverly Kalman, of counsel), for respondent.
*204***979OPINION OF THE COURT
TITONE, Judge.
Defendant was twice arrested and charged under Penal Law § 245.01 (unlawful **299 exposure) for sunbathing nude on the beach at Riis Park, Bay 1, in Queens County.1 He contests his ensuing convictions on several constitutional grounds: violation of his right to freedom of expression, the statute's overbreadth, and deprivation of a fundamental right. We conclude that defendant's Federal and State2 constitutional rights have not been violated.
I
Over a period of years, Riis Park, Bay 1, had informally come to be known as a “clothes optional” beach. The police had received numerous complaints of nudism from local residents, civic associations, elected officials and visitors to the beach. One of defendant's arrests occurred after a police officer viewed him through binoculars from a nearby nursing home. The other arrest occurred when an officer arrived on the beach to investigate an unrelated complaint. At the time of each arrest, defendant was sunbathing without clothes in the company of his wife and two small children.
Defendant's motion to dismiss the charges asserted his belief in the Naturist philosophy that open social nudity promotes health, that it permits heightened awareness of human similarity and vulnerability and that it presents an alternative to the repression of puritanism and the degradation *205 of pornography. He argued that the application of Penal Law § 245.01 to his conduct improperly denied him his State and Federal constitutional rights to free expression (U.S. Const. 1st Amend.; N.Y. Const., art. I, § 8), that Penal Law § 245.01 was overbroad, and that he was denied fundamental liberty and privacy rights. Criminal Court denied the motion.
After a Bench trial, defendant was convicted of two violations of Penal Law § 245.01. Appellate Term affirmed, concluding that defendant's conduct did not fall within any cognizable constitutional protection. We agree.
II
Initially, defendant urges that his nudity, in the context of its location and his beliefs, constituted symbolic expression and, thus, was entitled to protection. For two reasons, this argument must fail. First, defendant's conduct did not rise to the level of communication necessary to invoke constitutional protection. Second, even if defendant's actions were expressive, the State had the power to regulate such expression by prohibiting the public display of nudity.
Defendant's conduct in this case clearly falls within the latter category. While there may be contexts in which a public display of nudity would reasonably be understood as a means of communicating an idea, it cannot be said that nude sunbathing on a beach is a form of expression likely to be understood by the viewer as an attempt to convey a particular point of view. Although defendant apparently has a specific philosophy regarding nudism, his mere nude appearance did not create a great likelihood that his philosophy would be imparted to the public. Rather, the likely message to viewers was that defendant, like many others on the beach, had doffed his clothing to enhance his comfort, acquire an even tan or simply display his body to others. Such conduct cannot be considered sufficiently expressive to invoke the protections of the First Amendment and article I, § 8 of the New York State Constitution merely because its setting was a beach where nudity is commonplace.
Viewed against this standard, Penal Law § 245.01 is unquestionably a permissible regulation as applied to defendant's conduct, even if it did incidentally impinge upon his chosen form of self-expression. First, prohibiting public nudity is plainly within the State's police powers. Second, the statute is not aimed at suppressing the expression of opinion concerning nudity; instead, it neutrally prohibits all public displays of nudity regardless of the actor's purpose.
Third, the statute furthers an important governmental objective. Riis Park is a public beach dedicated to the recreation of the public, including New York families. Congress, in its wisdom, set aside all of Riis Park for that purpose. The effect of the nude sunbathers' repeated appearance at Bay 1 was to foreclose its use by others. The Legislature saw fit to remedy the possible crowding of surrounding beaches by prohibiting nudity altogether. There is clearly an important governmental interest in providing recreational space for the citizens of this State. Moreover, the State clearly has an interest in preserving the character of Riis Park for its intended use (see, Clark v. Community for Creative Non-Violence, supra ) and preventing uses antithetical to its essential nature (see, Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222).3
*208 Finally, Penal Law § 245.01, as applied, is as narrow as it can be in order to fulfill its governmental objective. Significantly, the statute prohibits only public nudity and does not impair defendant's right to advocate Naturism by some other means. And, while it may be argued that the shock of nudity was the most effective method of conveying defendant's philosophy, no one is guaranteed a right to what he considers to be the best of all means of expression, as long as the freedom to express an idea is protected (see, e.g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 [statute banning the use of sound trucks upheld where other means of publicity available] ).
III
Defendant's next contention is that Penal Law § 245.01 is overbroad in that it prohibits clearly protected activity such as nude modeling for an art class or classroom demonstrations involving human genitalia (see,Penal Law § 240.00[1] [defining “public place” to include schools] ). Thus, he argues, he may challenge the constitutionality of the statute on its face even if his conduct did not fall within the class of protected activities. This claim, too, must fail, as any arguable overbreadth of this statute is insubstantial.
This exception is applied, however, only when the statute's unconstitutional reach is substantial and the statute is incapable of a reasonable limiting construction (Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125supra; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830). As the Broadrick court noted (p. 615, 93 S.Ct. p. 2917), “Although * * * laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that *209 effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe”. Indeed, while it may be true that the expression of overly cautious citizens preferring to stay far away from the reaches of the law may be chilled by even the most carefully drawn statute, few of our criminal statutes would survive judicial scrutiny if they could be stricken because of a remote possibility that they might, as applied to an unusual set of facts, reach protected conduct (Note, First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 859, n 61).
Finally, defendant makes various claims that suggest he is asserting a fundamental right to appear nude in public. There is, however, no such fundamental right.
In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed 1042, the Supreme Court described the nature of rights encompassed by the Fourteenth Amendment liberty guarantee, stating “[w]ithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship *210 God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized * * * as essential to the orderly pursuit of happiness by free men.” The fundamental rights implicit in the Fourteenth Amendment have been expanded since Meyer was written (see, e.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147;Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600), but no court has gone so far as to suggest that that Amendment guarantees the unbridled right to conduct oneself in public in any manner regardless of how ***983 offensive it may be (cf. People v. Onofre, 51 N.Y.2d 476, 489, 434 N.Y.S.2d 947, 415 N.E.2d 936 [distinguishing between public **303 and private morality] ). Since it cannot seriously be argued that public displays of nudity are essential to an ordered system of liberty, we decline to recognize such conduct as within our citizens' fundamental rights.
Accordingly, defendant's constitutional rights were not violated by his conviction under Penal Law § 245.01, and the order of the Appellate Term should be affirmed.
WACHTLER, C.J., and MEYER, SIMONS, KAYE, ALEXANDER and HANCOCK, JJ., concur.
Penal Law § 245.01 states: “A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment”.