Judge Rules Nudity NOT A First Amendment Right, Even In San Francisco

If you’re going to San Francisco, be sure wear some…clothes - Gypsy protests; photo by Mike Koozmin/S.F. Examiner @ SF Examiner

If you’re going to San Francisco, be sure to wear some…clothes – Gypsy protests; photo by Mike Koozmin/S.F. Examiner @ SF Examiner

From the Only In San Francisco File:

Just when you thought it was safe to engage in “genital exposure” on San Francisco streets, the U.S. District Court decided it was not a First Amendment violation to restrict such activity and, in fact, has upheld the San Francisco Board of Supervisors’ decision to do so.

Well, not all public nudity and not in all public places. In a sort of bone-throwing nuance, U.S. District Judge Edward Chen, who threw the entire case against the proposed ordinance out of court, clarified some notable exceptions, making reference to another case in which points of nudity were adjudicated:

“In many respects, the ordinance is quite limited,” Chen wrote. “For example, the ordinance basically bans nudity on public streets, plazas, and transit system areas. It does not, like the laws in City of Erie and Barnes [v. Glen Theatre], ban nudity in all public places, such as indoor establishments (where there is a consenting audience); nor does it ban nudity on public beaches or parks. Also, the ordinance prohibits exposure of a person’s genitals, perineum, or anal region only. It does not ban exposure of breasts…” […]

“And once again,” he added, “defendants have offered a rational basis for the distinction – i.e., because nudity at permitted events such as the Pride Parade and Bay-to-Breakers is generally widely publicized, and the public has come to expect public nudity at those events, and thus is not ‘unwillingly or unexpectedly exposed’ to nudity at them. Further, permitted events typically involve street closures and other public safety precautions that reduce the risk that nudity will create public safety hazards.'” [Source: Courthouse News]

That seems fair, doesn’t it? Not so, say San Francisco nudists.

Let’s go back a bit, put some context into this thing. Here’s how it got started:

The original ordinance was sponsored by San Francisco Castro District Supervisor Scott Wiener. Wiener told colleagues that his area’s “growing naked problem” elicits slews of public complaints, apparently more than even issues related to the homeless or the city’s public transit system (the city’s public transit system must be highly problematic!).

So back in November of 2012, the San Francisco Board of Supervisors voted on Wiener’s ordinance and the “yeas” won, 6-5, to prohibit “genital exposure” on all city sidewalks, plazas, parklets, streets and public transport.” I don’t know what a “parklet” is but I’m surmising it’s a small park. Anyway, the point is that there’s to be no genital exposure in any and all of these designated places. This naked truth (sorry), while not in effect until February 1, 2013, was met with outrage by a few particularly proactive nudists who decided not to take it sitting down…on their exposed – oh, never mind… they decided to pre-emptively sue.

A group of them – Mitch Hightower, Oxane “Gypsy” Taub, George Davis, and Russell Mills – sued the city of San Francisco, the county of San Francisco, and three of its supervisors – David Chiu, Angela Calvillo, and, of course, the original perpetrator, Scott Wiener – seeking “declaratory judgment and injunctive relief.” All this, despite the fact that the city’s street fairs, festivals, parades and beaches would still welcome nudists. The plaintiffs declared that this is not only not enough, but that their First Amendment rights are being trampled.

Really? If that confuses you, consider the perspective of “Gypsy” Taub, who sees her naked body “as an integral part of her political speech” and produces “a television program on nude activism, including but not limited to nudity in public spaces.” Mitch Hightower, who sponsors an annual “Nude-In,” claims it promotes “a spirit of tolerance, peace and fellowship among the attendees” and should not be limited by law. George Davis ran for mayor as the “nude candidate” in 2007, campaigning and debating in the nude, which confirms that he “uses nudity as part of his political expression.” Russell Mills has yet to build his portfolio as a “birthday suiter” but does run the online group “Fans of Urban Nudism.” [Source]

Claiming they represent a class action group too large to even count (which, considering it’s San Francisco, is not hard to believe), they hired San Francisco civil rights attorney, Christina DiEdoardo, and filed their federal suit days within days of the Board of Supervisors vote on November 12, 2012. From there it was just about waiting for some federal relief.

But it turns out the right to bare all doesn’t hold up in court. The complaint was dismissed last week under both state and federal law, with presiding Judge Edward Chen citing the following:

“Plaintiffs’ assertion that [California penal code] disables local governments such as the city and county of San Francisco from enacting a law banning nudity (even if not lewd) is without merit,” Chen wrote. “As defendants note, a state appellate court has already rejected the argument that an ordinance that bans public nudity is preempted because it conflicts with [state law]. … Absent any contrary state appellate authority, this court concludes that there is no conflict between the ordinance and state law.”

He also added in reference to the First Amendment argument:

“Flag burning has a pretty clear message,” he said, while a naked person in public could be simply sunbathing.

“Being nude, it seems to me, doesn’t have the same obvious particularized message.”

Despite the fact that there was some debate within the court as to whether or not such things as “nude dancing” were an example of “free speech,” no judge would assert that the action was protected by the First Amendment. Citing the City of Erie v. Pap’s A.M case, Judge Chen made the point that Board of Supervisor’s ordinance, unlike the Erie case, did not limit all public nudity or all kinds of public nudity (see paragraph at top…seems you can go topless if the weather’s right and you’re feeling fine).

Bottom line, Judge Chen stated that “the plaintiffs failed to implicate a fundamental right, as nudity is not inherently expressive.”

Which means, since the ordinance doesn’t go into effect until February 1st, Gypsy and the boys will be counting the hours before they have to wrap things up.



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