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SF Officials Dress Down Lawsuit Over Nudity Ban

SAN FRANCISCO (CN) - A new ban on public nudity in the city-county of San Francisco ordinance does not violate free-speech rights, officials told a federal judge.

Mitch Hightower, Oxane "Gypsy" Taub, George Davis and Russell Mills sued the City and County of San Francisco and three of its supervisors last month, days before the Board of Supervisors approved an ordinance to tighten the city's freewheeling public nudity laws.

The board voted 6-5 in favor of the ordinance on Nov. 21, and formally approved the ban in a second reading on Dec. 7 with a 7-4 vote. Once it takes effect Feb. 1, the law will prohibit "genital exposure" on all city sidewalks, plazas, parklets, streets and public transit.

Nudists claim that the ordinance effectively chills their political free speech, since their nakedness is "inextricably intertwined with their political activism, including but not limited to their words and written statements," according to their original complaint. They also note that the ordinance contains no exclusion for free speech.

Supervisor Scott Wiener says he sponsored the law as a response to concerns from his constituents in the Castro District about the growing naked problem there. He says his office receives more concerns about public nudity far than about homelessness or San Francisco's public transit system Muni.

While others on the board expressed concerns about free speech before last month's vote, Wiener told them that argument amounts to a slippery slope.

"I don't agree that having yellow hair is the same as exposing your penis at a busy street corner for hours and hours," Wiener said at the meeting.

In a motion to dismiss the nudists' lawsuit, attorneys for the city, Wiener and other supervisors call the ban an effort to "address the harms of public health, safety and general welfare caused by public nudity, which is a 7-day a week problem in the neighborhoods where people live, work, shop and raise their children."

They insist that the ordinance is not a full-fledged assault on nudity, but that it merely prohibits exposing parts of a person's front- and backside.

"Only minimal clothing is required to satisfy the requirements of the ordinance," according to the Thursday motion authored by Deputy City Attorney Tara Steeley. "Indeed, even a G-string would do. Notably, the ordinance does not prohibit nudity on beaches or on private property. Nor does it prohibit the taking of still photography, videos or films showing nudity, or the viewing of such photos and videos."

First Amendment concerns also miss the mark, San Francisco says.

"Plaintiffs' First Amendment claim is premised on the misguided notion that being nude in public is inherently expressive speech entitled to protection under the First Amendment," Steeley wrote. "That argument has already been rejected by the Supreme Court and numerous other courts which have consistently upheld laws prohibiting public nudity."

"Nudity is not conduct that is 'integral to, or commonly associated with expression,'" she added, citing the 9th Circuit's 1996 decision Roulette v. City of Seattle. "To the contrary, most - indeed, the great majority - of political and artistic expression is undertaken fully clothed, and plaintiffs can continue to express their political views about the ordinance, or about any other topic, while wearing clothes."

U.S. District Judge Edward Chen must also reject the nudists' outrageous discrimination claims, the motion says.

"Some opponents of the ordinance have suggested that it is akin to laws that discriminate against gay individuals, but that is not correct," Steeley wrote. "The ordinance does not regulate private, sexual relationships between consenting adults, and does not regulate conduct occurring on private property. Nor does the ordinance restrict the fundamental freedoms of one disfavored group. Rather, the ordinance is a generally applicable law that promotes civility on public streets and other public spaces that need to be shared by all members of society."

A hearing is set for Jan. 17.

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