to review nudity ban
by Matthew S. Bajko
In expectation that San Francisco will adopt a ban against public nudity, a federal judge is set to review the new law early next year.
U.S. District Judge Edward M. Chen, with the United States District Court for the Northern District of California, has scheduled a hearing for January 17 to determine if the new law violates the rights of urban nudists.
In response to constituents fed up with naked men who congregate at a plaza in the Castro, gay District 8 Supervisor Scott Wiener introduced an ordinance to ban people from being nude on city sidewalks, parklets, streets, on Muni vehicles, and inside transit stations. The law would exempt permitted street festivals and parades; nudity is already banned in city parks, on port property, and in restaurants.
Nudists and their supporters have fought back, holding several nude-ins to protest the law. They argue it not only tramples on people's First Amendment freedoms but also would negatively impact the city's reputation with tourists and other visitors.
The Board of Supervisors was expected to adopt the new ordinance at its meeting Tuesday, November 20 (After the Bay Area Reporter's print deadline this week the supervisors on a 6-5 vote passed the nudity ban. See story http://ebar.com/blogs/?p=5136). If a majority of the 11-member board votes a second time in December to support the nudity ban, then Mayor Ed Lee is expected to sign it into law.
The prohibition against anyone over age 5 from exposing his or her genitals, perineum, or anal region in public would take effect February 1 unless the court blocks it. Due to the pending litigation, the date for when the ordinance would become law was pushed back to give the court time to hear the case.
As the B.A.R. noted last week in an online blog post, San Francisco-based lawyer Christina A. DiEdoardo filed the class action lawsuit on behalf of four nudists claiming the proposed law violates their freedom of expression and the equal protection clause of the U.S. Constitution.
"The proposed legislation impermissibly restricts the free speech and association rights of plaintiffs and all similarly situated persons as it attempts to criminalize nudity even when engaged in for the purpose of political advocacy," states the lawsuit. "Furthermore, the proposed ordinance violates equal protection as it exempts certain types of speech – i.e. that taking place at city-sanctioned events – from enforcement."
The named plaintiffs include Mitch Hightower, a gay man who organizes a yearly nude-in at Jane Warner Plaza in the Castro; Oxane "Gypsy" Taub, a Berkeley resident who hosts her own nudity television show; George Davis, who ran for San Francisco mayor as a nude candidate; and Russell Mills, who oversees a pro-nudity website.
DiEdoardo had tried to obtain a temporary restraining order to prevent the supervisors from voting on the ban but was informed that the judge would not grant the request. Instead, Chen agreed to consider a motion for an injunction against the proposed ordinance that would prevent the ban from going into effect if passed by city leaders. After being informed of the judge's decision during a November 15 conference call, DiEdoardo withdrew the restraining order request and filed a motion for an injunction to stop the law from taking effect next year.
"I have not seen anything, and the supervisors have pointed to no statutes, that said they have the ability to regulate dress codes," DiEdoardo told the B.A.R. in a phone interview this week. "Outside of Catholic schools, violating a dress code is not a penal offense. That is what they are trying to do here."
Under the proposed law, a first offense would come with a $100 fine, while repeat offenders could face a $500 fine or a year in county jail. Any convictions due to the ordinance would not constitute a sex offense for purposes of the state sex offender registry.
In both the lawsuit and during the interview, DiEdoardo claimed that her clients "are entitled" under the First Amendment to be nude in public as they are engaging in "expressive speech." The city cannot ban such speech, she said, merely because others are offended by seeing people nude.
"Remember, the First Amendment is there to protect speech that by its nature is unpopular," said DiEdoardo. "Those people who argue we don't want to see those people in the Castro should listen to themselves. It is the exact same words used against transgender people who nobody wanted to see outside of the Tenderloin 40 years ago."
Matt Dorsey, a spokesman for City Attorney Dennis Herrera, called the nudists' lawsuit baseless.
"Assuming a ban on public nudity is enacted in San Francisco, we think the legal challenge would be without merit," Dorsey told the B.A.R. "The U.S. Supreme Court has previously upheld that nudity is not speech. It is content neutral. And on that basis, the high court has twice upheld local ordinances banning public nudity."
In those two cases, City of Erie v. Pap's A.M. and Barnes v. Glen Theatre Inc. , the court upheld laws requiring nude dancers to wear pasties and G-strings. It ruled that being nude is not an "expressive condition" and that local authorities can regulate against public nudity.
A district judge for the United States District Court in the Southern District of California upheld San Diego's ban against public nudity in a 2010 decision. The case, Bush v. City of San Diego , involved the organizer of a nude bike ride protesting petroleum who was denied permits by city officials due to the nudity ban.
"Does nudity, by itself, communicate an intelligible message such that there [is] a First Amendment right to be naked? The Supreme Court has already weighed in on this question, and has answered 'no': Being in a 'state of nudity' is not an inherently expressive condition," wrote Judge Larry Alan Burns in his opinion.
He added that, "it is highly unlikely" Sarah E. Bush would prevail in her claim that the San Diego anti-nudity ordinance violates the Constitution.
San Diego's ordinance is far broader than the one proposed by Wiener, as it also bans nudity at public beaches and on private property "open to public view."
Pratheepan Gulasekaram, a constitutional law professor at Santa Clara University School of Law, said the fact that other cities' bans, such as in San Jose and Berkeley, remain in effect does not signal they would survive judicial review.
"It's tough. Just the fact that such bans exist in other places doesn't necessarily tell you if they are constitutional or legal," he said.
It is also unclear how the Supreme Court would rule if it were to hear the case against San Francisco's law, added Gulasekaram. Though he predicted opponents of the law face steep hurdles.
"There may not be a lot of First Amendment ground for the people opposing this law to legislate this lawsuit," he said.
They can make a First Amendment claim but the city only needs to counter that the ban is being enacted for reasons other than suppressing a person's expression, Gulasekaram said.
"They can make the claim, 'I am doing this to express a message about society's prudishness or moral standards.' Now, the city probably has a good counterargument even if that is true and your nudity is being used to express a message, the city has a strong defense in we are not trying to suppress the message itself but are concerned about ancillary things such as public health or something," he said. "It will make for an interesting lawsuit."
DiEdoardo said there is still a chance for the two sides to come to an agreement in order to avoid having to go to court, though that possibility appears unlikely.
"At some point – here is a wacky thought – somebody in City Hall could read the lawsuit, see here are the issues they brought up, and make changes to the ordinance to meet these concerns and we come up with a compromise," she said. "Mitch and his colleagues have always been willing to work with the city. Unfortunately, no one has been willing to work with them. Perhaps this can get resolved and it doesn't have to happen in the courtroom. But unless they propose another path, that is where we are headed."