SAN FRANCISCO (CN) – A law banning nudity on San Francisco’s streets and sidewalks does not violate the First Amendment rights of nudists, a federal judge ruled Tuesday.
The San Francisco Board of Supervisors voted 6-5 in November to prohibit “genital exposure” on all city sidewalks, plazas, parklets, streets and public transport.
Castro District Supervisor Scott Wiener, who sponsored the ordinance, told colleagues that his area’s growing naked problem generates more complaints from constituents than homelessness or Muni, the city’s public transit system.
Nudists filed a federal class action to prevent the ordinance from going into effect. Lead plaintiffs Mitch Hightower, Oxane “Gypsy” Taub, George Davis and Russell Mills claimed that nudity is an integral part of their personal and political expression, protected by the First Amendment.
They sued the city and county of San Francisco, Supervisor Wiener and two other supervisors, David Chiu and Angela Calvillo.
U.S. District Judge Edward Chen dismissed the complaint entirely Tuesday, rejecting claims under both state and federal law.
“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.”
Nakedness is not “inherently expressive” under the Constitution, according to the decision.
Even though the U.S. Supreme Court was divided in City of Erie v. Pap’s A.M. as to whether nude dancing constituted free speech, no justice “suggested that public nudity per se is expressive conduct protected by the First Amendment,” Chen wrote.
“Thus, it is not surprising that lower courts have also held that public nudity alone is not expression protected by the First Amendment,” he added. “This conclusion is consistent with the test to determine when conduct is sufficiently expressive as to deserve First Amendment protection. Expressive conduct exists where ‘an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.'”
He continued: “Even if a person intended to convey a particular message simply by walking in public nude, the likelihood is far from ‘great that the message would be understood by those who viewed it,’ at least absent any other context to suggest that the nudity is intended to convey a particular message. Unlike the burning of a flag, burning of a draft card, or wearing a black armband in protest against the war, public nudity in and of itself is not commonly associated with expression of a particular message.”
San Francisco also narrowly tailored the ordinance, according to the ruling.
“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 as did the laws in City of Erie and Barnes.”
He added: “While the ordinance does not contain an explicit exemption for those engaged in expressive matters of serious literary, artistic, scientific or political value as did the Jackson ordinance in J&B Entertainment, Inc. v. City of Jackson, given the narrowness of the San Francisco ordinance compared to laws upheld in City of Erie and Barnes, the court concludes plaintiffs have failed to establish there is a ‘substantial number of applications [which] are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.'”
Chen also rejected equal protection claims raised in connection an exemption from the nudity ban for children under 5 and certain events like the city’s Pride Parade and Folsom Street Fair.
All of the plaintiffs lack standing in the first exemption, since none is between the ages of 5 and 14, according to the ruling.
“As for the permit exemption, the plaintiffs failed to implicate a fundamental right, “as nudity is not inherently expressive,” Chen wrote.
“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.'”
Since the ban does not take effect until Feb. 1, Chen admitted that the nudists may be able to show at a later date that the ordinance is selectively enforced – and in a discriminatory way. They thus can amend their complaint for future challenges.
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