SAN FRANCISCO (CN) – A federal judge ordered San Francisco to give a parade permit to nudists who challenged a city ordinance that restricts when and where they can be naked in public.
George Davis and Oxane “Gypsy” Taube fought a 2012 San Francisco ordinance that severely curtailed when and where public nudity can occur, banning it from all city sidewalks, plazas, parklets, streets and public transit except as part of a permitted parade or event.
The nudists and San Francisco settled most of the suit earlier this year, while preserving their right to appeal a decision by U.S. District Judge Edward Chen in which he declined to stop enforcement of the ban on political free speech grounds.
Davis and Taube planned to hold a public march this past weekend to protest the enactment and enforcement of the ban and – believing their march fell within the city’s purview of “parade” – applied for a permit that would have allowed them to march naked legally.
But city officials denied the application, finding that because there would be fewer than 100 participants the march could take place on sidewalks and did not qualify as a parade – and therefore didn’t need the very necessary permit to allow nudity.
The nudists sued again, asking U.S. District Judge Richard Seeborg to order San Francisco’s police chief to issue them a permit for their naked march. And while they also took the opportunity to again argue the unconstitutionality of the ordinance, Seeborg said he didn’t need to go that far to find “the chief of police simply failed to follow the ordinance when considering and ultimately denying plaintiffs’ application.”
“The city is arguing, in effect, that the ordinance delegates to the chief of police discretion to conclude that a particular proposed expressive march is too small to be entitled to use of the streets, and thus can instead be relegated to the sidewalks. The city is unable, however, to point to any provisions in the text of the ordinance expressly assigning such discretion to the chief or providing standards under which it is to be exercised,” Seeborg wrote, adding that nothing in the ordinance sets a number for what qualifies as a parade.
“The chief’s denial of the permit cannot stand because the ordinance does not authorize him to withhold approval on grounds that an applicant’s proposed event will have too few participants,” the judge continued. “That failure to comply with the ordinance rises to the level of a cognizable federal claim because it impacts plaintiffs’ First Amendment rights.”
As for the remedy, Seeborg rejected the city’s preference to allow the police chief to reexamine the permit application since the parade was meant to coincide with the infamous Folsom Street Fair this past weekend.
“Additionally, while it may not strictly have been incumbent on the city to do so, it has not articulated any reasons why a permit likely could or would be denied under any of the grounds set out in the ordinance. Accordingly, the city will be ordered to issue the permit,” Seeborg concluded.
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