Breaking: Federal judge
upholds SF nudity ban
by Matthew S. Bajko
San Francisco's ban against public nudity on city streets, sidewalks, and parklets will go into effect Friday, February 1 as planned.
Late today (Tuesday, January 29) a federal district judge denied a request from four urban nudists seeking an injunction against the law. They had argued it violated their free speech rights and that the city has no authority to tell people they should be clothed.
Those arguments failed to sway U.S. District Judge Edward M. Chen, with the United States District Court for the Northern District of California. He sided with the city and dismissed the lawsuit.
In his ruling Chen wrote that "the court concludes that the ordinance does not conflict with state law, that plaintiffs' facial challenge to the ordinance based on the First Amendment lacks merit because nudity is not inherently expressive and because the ordinance is not substantially overbroad, and that plaintiffs' equal protection claim as pled fails to state a 14th Amendment claim under the rational basis test."
The ruling had been expected, as Chen indicated during a January 17 hearing on the nudists' lawsuit that he saw no reason to block the public nudity ban from being implemented.
"The plaintiffs took an unlikely position in their case that if they couldn't be naked everywhere, no one could be naked anywhere. We believed their legal challenge to be baseless, and we're grateful that the court agreed," stated City Attorney Dennis Herrera in a news release.
Under the law, exposing one's genitals, perineum or anal region would also be banned on transit vehicles and at Muni stations. Children under 5 years old are exempted and the restrictions do not apply to a woman's breasts nor ban such things as chaps or other ass-bearing clothing.
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.
The proposed legislation would allow for exemptions of the policy at "permitted parades, fairs, and festivals" such as the gay Pride festival or the Folsom Street Fair.
"Even though we're not surprised by Judge Chen's ruling, we're gratified by an outcome that affirms established case law and preserves reasonable exceptions for permitted events," stated Herrera. "Ironically, the nudism advocates' equal protection claim raised legal questions about the validity of exceptions that the board and mayor approved, which allow nudity at events like Bay to Breakers and the Folsom Street Fair."
Despite his rejection of their initial lawsuit, Chen did leave the door open for the nudists to re-file their legal challenge after the law goes into effect this Friday. He had hinted during the oral arguments in the case of just such a possibility, questioning what impact the nudity ban would have on constitutionally protected political speech.
"This ruling does not bar plaintiffs from bringing a class claim in an as-applied challenge, if they can ...," wrote Chen, noting they would have 45 days from Tuesday to file an amended complaint.
The fight over the city's nudity prohibitions is by no means over. The nudists and their attorney, Christina A. DiEdoardo, were meeting to discuss their legal options and if they would appeal the decision to Ninth Circuit.
"We are not done yet people," wrote Mitch Hightower, one of the plaintiffs who organizes an annual nude-in in the Castro, in a note on Facebook.
The first test of the ban will come Friday when the urban nudists will hold a rally outside City Hall where another of the four plaintiffs, former mayoral candidate George Davis, plans to announce his candidacy to run for District 8 supervisor in 2014. It was gay District 8 Supervisor Scott Wiener who pushed for the nudity ban last fall in response to constituent complaints about naked men congregating at Jane Warner Plaza in the city's gay Castro neighborhood.
Hightower wrote that if people at the rally Friday are cited for being nude "as we hold 'George Davis for District Eight Supervisor' signs, that may demonstrate to the judge the need for an exemption for political expression."