9th Circuit Rules Against Public SF Nudists

SAN FRANCISCO—Nudist (aka "Body Freedom Activist") Gypsy Taub and co-plaintiff George Davis have suffered a defeat in the Ninth Circuit U.S. Court of Appeals in their lawsuit to have public nudity in San Francisco declared lawful. In an opinion released on May 25, they ruled that the First Amendment guarantees of freedom of speech don't apply to taking off one's clothes. At issue is the city's Police Code Article 2, Sec. 154, which claims that "a person’s public exposure of his or her private parts invades the privacy of members of the public who are unwillingly or unexpectedly exposed to such conduct ... creates a public safety hazard by creating distractions, obstructions, and crowds ... [and] discourages members of the public from visiting or living in areas where such conduct occurs." Taub and Davis first challenged the law more than three years ago, with the Ninth Circuit issuing its ruling only last week. "Public nudity is not inherently expressive, but it may in some circumstances constitute expressive conduct protected under the First Amendment," the Circuit's three-judge panel, one of whom was a visiting judge from the Northern District of Ohio, held. "Even if Plaintiffs’ public nudity at political rallies was entitled to First Amendment protection, however, we hold that the challenged ordinance is a valid, content-neutral regulation as applied to Plaintiffs’ expressive conduct under United States v. O’Brien (1968). O’Brien is the applicable test here because the ordinance is aimed at 'the conduct itself, rather than at the message conveyed by that conduct.'" Of course, one might argue that taking one's clothes off in public is a message in itself and inextricable from the "conduct" of taking off one's clothes in public—and in a sense, at least some of the O'Brien factors cited by the Ninth Circuit judges would seem to support that argument. For example, the opinion claims that, "[T]he ordinance furthers San Francisco’s important and substantial interests in protecting individuals 'who are unwillingly or unexpectedly exposed' to public nudity and preventing 'distractions, obstructions, and crowds that interfere with the safety and free flow of pedestrian and vehicular traffic.'" But considering that everyone is born nude and most spend a substantial portion of their lives nude, the only reason they would need to be "protected" from seeing nudity in public has more to do with pseudo-religious values than any need to prevent "distractions" or "obstructions" or "crowds." Clearly, if there were more public nudity and passersby became used to seeing it, such objections would no longer be applicable, and only the court's circular reasoning prevents this from happening. Indeed, the ordinance only applies to exposure of the "genitals, perineum [or as most people call it these days, the "taint"], or anal region," meaning that toplessness—women's or men's—doesn't trigger a violation of the law, so in that sense, the law is discriminatory in that it criminalizes some alleged "distractions" and not others equally likely to engender "obstructions" and/or "crowds." Equally specious is the court's claim that, "San Francisco’s interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive." But if the objective of the nudity is to comment on public morés regarding nudity or other body issues, then certainly that type of "free expression" should be protected. However, the opinion directly challenges that argument, holding that, "Plaintiffs request leave to amend the Second Amended Complaint in order to plead additional facts relating to the expressiveness of their nude rallies and demonstrations [but] because we conclude that San Francisco’s public nudity ordinance is a valid regulation under the O’Brien test, even if we assume that more of Plaintiffs’ conduct was likely to communicate a message to those who saw it, Plaintiffs’ complaint would not be saved through further amendment." Sadly, that means that the plaintiffs' only legal remedy at this point would be with the U.S. Supreme Court, though the plaintiffs' attorney, D. Gill Sperlein, might not want to risk that step, considering the current religio-conservative bent of the federal government and particularly the high court. "We knew this would be an uphill battle," Sperlein told AVN. "Even so, we believe the 9th Circuit missed some key issues. My clients will continue to fight to destigmatize nudity through education, legislation, and when appropriate, through litigation."