Issue:  Vol. 44 / No. 43 / 23 October 2014
 
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Breaking: Judge unlikely
to block SF nudity ban

NEWS


m.bajko@ebar.com

Urban nudist George Davis, who is a plaintiff in the case, talked to reporters outside the federal courthouse Thursday, January 17.
(Photo: Jane Philomen Cleland)
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A federal judge Thursday afternoon indicated he was unlikely to block San Francisco's public nudity ban from being implemented next month.

Late last year city lawmakers adopted an ordinance prohibiting people from exposing their genitals, perineum, or anal region in public. The rule would apply to sidewalks, parklets, streets, on Muni vehicles, and inside transit stations; nudity is already prohibited in city parks and along the waterfront.

A group of urban nudists sued to overturn the law, and have asked the federal court for an injunction to prevent it from going into effect February 1. Not only do they argue they have a right to be unclothed in public, they also contend the new law violates their free speech rights.

The city argues that the U.S. Supreme Court has ruled that being nude is not a protected form of speech and that it has the right to enact laws regulating where people can disrobe in public. The new law, for instance, carves out an exception for people to be nude at city permitted street fairs, parades, and festivals.

"The Supreme Court has said nudity by itself is not expressive," deputy city attorney Tara M. Steeley told the court. "The ordinance is not targeted at expression."

U.S. District Judge Edward M. Chen, with the United States District Court for the Northern District of California, appeared to agree with the city's argument during the first court proceeding in the case. He spent more than an hour questioning the attorneys representing the city and the plaintiffs.

"This looks like classic time, place, and manner restrictions. I don't see how this is based on someone's views or what somebody is saying," said Chen.

San Francisco-based lawyer Christina A. DiEdoardo, who filed the class action lawsuit on behalf of four nudists, questioned whether the city does indeed have the power to enact the nudity ban under state law.

"I have not seen anything from the city that says we have the right to enforce a dress code," said DiEdoardo.

She also disputed the city's contention that the nudity ban is about protecting the public's health.

"This is not like passing a ban on smoking. No one I know acquired cancer or any diseases from walking down Castro Street and running into someone not wearing clothes," DiEdoardo said.

Chen did raise questions about the laws' lack of exemptions for protected speech under the First Amendment, such as political demonstrations, suggesting the nudity ban could come under judicial review once it is implemented.

"The issue is to what extent protected speech is implicated. Does the city agree certain forms of nudity is protected as political speech?" asked Chen. "You would agree some kind of political protest that includes nudity is entitled to some protection?"

Steeley conceded "there are situations where nudity can be combined with another expressive event." But she countered that "doesn't mean the First Amendment prevents the city from regulating it."

The judge pressed Steeley on what would happen come February 1 if someone decides to become nude in front of City Hall to protest the enactment of the ban.

"I can't speculate on future events. I can say the prohibitions of the ordinance are clear," said Steeley.

Earlier DiEdoardo had told the judge that law enforcement's reaction to people being naked in public had already been impacted by the Board of Supervisors' passage of the nudity ban. She added that her clients planned to continue to hold nude-ins in protest of the law come February and expect to be prosecuted under it.

"It seems something has changed in the minds of law enforcement since the ordinance passed," she said. "My clients are certain if the injunction isn't granted, as soon as February 1 comes around they will be cited."

Chen told the attorneys that he would issue his opinion on the injunction request as well as the city's request that he dismiss the case by the end of January.

After the hearing Steeley told reporters that she felt confident that the judge would side with the city.

"There is nothing in the ordinance to prevent any political speech at all. If it is on private property or inside, the ban doesn't apply," said Steeley. "It simply regulates conduct. It doesn't prevent anybody from being nude at a debate or at the Board of Supervisors."

She added that the ordinance purposely did not include exemptions for political speech.

"The plaintiffs argue that anyone nude anywhere is engaging in political speech. Had there been an exemption for that it would wipe out the rule," said Steeley.

At a pre-hearing rally attended by eight nudity supporters, Oxane "Gypsy" Taub told reporters that the ban violates her rights.

"It limits my freedom of self expression and my freedom of political expression," said Taub, one of the named plaintiffs in the case.

She vowed that should the judge uphold the law, then "we will find other means to defeat this ban."

DiEdoardo told reporters she was prepared to take the legal challenge all the way to the U.S. Supreme Court but expressed confidence that Chen would side with her clients.

"I am fairly confident we will win today," she said.

The lawsuit is Mitch Hightower et al v. City and County of San Francisco, Case No. C-12-5841.






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