Nude Protesters, San Francisco,|Will Take Their Fight to Trial

     SAN FRANCISCO (CN) – A federal judge handed Christmas gifts to both nudists and San Francisco officials on Wednesday, whittling down the 2-year battle over the city’s ban on sidewalk nudity to two instances in which police targeted protesters at City Hall, and dismissing the rest of the suit.
     The San Francisco Board of Supervisors voted in November 2012 to prohibit “genital exposure” on all city sidewalks, plazas, parklets, streets and public transport, except during permitted activities such as the Pride Parade, Folsom Street Fair and Bay to Breakers race.
     Nudists struck back by filing a federal class action to prevent the ordinance from taking effect, claiming that nudity is an integral part of their personal and political expression and protected by the First Amendment.
     U.S. District Judge Edward Chen dismissed the case entirely in early 2013, finding San Francisco’s ban narrowly tailored enough to permit some nude expression in the proper settings. But he allowed the nudists to amend their complaint, which they have done twice in the nearly two years since.
     On Christmas Eve, Chen dismissed the bulk of the nudists’ second amended complaint, which detailed a number of instances where the nudists disrobed throughout the city and were cited or detained by police.
     In only two cases – both outside City Hall during an organized protests against the ordinance – did Chen find that police had selectively targeted the nudists to suppress their political views, and only because of the temporal proximity to the law’s passage.
     “Plaintiffs have alleged three different groups that engaged in publicly nude conduct, that were treated favorably by the SFPD – e.g. the SFPD did not issue citations to members of those groups,” Chen wrote. “Two of the control groups alleged – participants in Critical Mass and World Naked Bike Ride – engaged in publicly nude bike riding. The third control group – participants in the ‘Naked Sword film shoot’ – was shooting a film involving public nudity, and is not alleged to have been riding bikes.”
     The plaintiffs claimed that each control group violated the law “in a prominent manner,” by being nude in public without a permit.
     San Francisco police were at each event “and presumably aware of each control group’s nude conduct,” the complaint stated – perhaps a reasonable inference for a naked bike pelotón and a naked swordfight.
     “For purposes of the anti-nudity ordinance, these groups are similarly situated to plaintiffs; there is no obvious reason why other groups who violate the ordinance should not have been subjected to enforcement,” Judge Chen wrote. “The court finds that each of these groups engaged in sufficiently comparable conduct to the plaintiffs’ alleged protests outside of City Hall on Feb.1 and March 22, 2013.”
     Chen declined to stop enforcement of the ordinance however, noting that as time passes the nudists’ ability to legally rely on the political free speech argument fades.
     The city will be able to defend its selective enforcement of the nudity ban at trial, slated for early 2015.

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