In the filing submitted to the court today (Thursday, December 13) Herrera argues that nudity bans “are common” across the country and that all a person has to do is wear a G-string in order to adhere to the law.
The city’s motion also notes that anyone who wishes to be naked in public can do so under the new law at permitted events such as the Bay-to-Breakers race, Pride parade and Folsom Street Fair. The law also does not bar anyone from being naked on the beach or on private property, notes the city.
“Public nudity bans are a longstanding feature of municipal codes throughout the nation, and their constitutionality has been repeatedly affirmed by the courts – including the U.S. Supreme Court,” stated Herrera in a press release.
He added that “the legal challenge is without a basis in the law, and we’re confident the court will dismiss.”
According to the filing, Mayor Ed Lee quietly signed the nudity ban ordinance into law last week Thursday, December 6. Due to the litigation, the ban is set to set to take effect February 1 rather than the normal 30 days post signing by the mayor.
The ban requires people not to expose their genitals or anal region on city sidewalks, parklets, streets, on Muni vehicles and inside transit stations. The law would exempt permitted street festivals and parades; nudity is already banned in city parks, restaurants and on port property.
U.S. District Judge Edward M. Chen, with the United States District Court for the Northern District of California, has scheduled a hearing for January 17 to determine if the new law violates the rights of urban nudists. The case is known as Mitch Hightower et al. v. City and County of San Francisco et al.
San Francisco-based lawyer Christina A. DiEdoardo filed the class action lawsuit in November on behalf of four nudists claiming the proposed law violates their freedom of expression and the equal protection clause of the U.S. Constitution.
“We are looking forward to a positive hearing before Judge Chen,” DiEdoardo told the Bay Area Reporter in an interview last month. “We are very confident in our case, and I am sure the city is of theirs, and we will go from there.”
The named plaintiffs are Mitch Hightower, a gay man who organizes a yearly nude-in at Jane Warner Plaza in the Castro; Oxane “Gypsy” Taub, a Berkeley resident who hosts her own nudity television show; George Davis, who ran for San Francisco mayor as a nude candidate; and Russell Mills, who oversees a pro-nudity website.
Herrera criticized the nudists’ equal protection claim in their lawsuit as he contends it “could actually undermine” the exceptions for permitted events that was included in the nudity ban.
“The nudism advocates seem to have taken the position that if they can’t be naked everywhere, no one can be naked anywhere,” said Herrera.
The prohibition would prevent anyone older than 5 years old from exposing his or her genitals, perineum or anal region in the listed public areas. It would not apply to a woman’s breasts, nor would it ban such things as chaps or other ass-bearing clothing.
“Because only minimal clothing is required to satisfy the ordinance’s requirements, any burden on expression is de mimimis,” states the city in its filing, meaning that the nudists will continue to have “ample opportunities to express a message.”
“Plaintiffs remain free to shout their beliefs from the rafters,” argues the city. “They simply must wear a minimal amount of clothing while doing so, if those rafters are located in a public place.”
Should the ban become law, violators would be fined $100 for a first offense, and $200 for a second offense. Third time offenders would face a $500 fine and up to a year in jail. Those convicted under the law will not be required to register as sex offenders.