S.F.’s public nudity ban upheld in Federal Court
City Attorney prevails in move to dismiss nudism advocates’ lawsuit, which argued that public nudity is a Constitutionally-protected right
SAN FRANCISCO (Jan. 29, 2013) -- A U.S. District Court judge has dismissed a federal Constitutional challenge by four nudism advocates to a recently enacted City ordinance banning public nudity in San Francisco, except for certain permitted events and for children under the age of five. The order issued late today by Judge Edward Chen sided with City Attorney Dennis Herrera’s arguments that the constitutionality of local restrictions on public nudity has been repeatedly upheld in the courts, including the U.S. Supreme Court, and that such bans are a valid and longstanding feature of municipal codes throughout the nation.
“Even though we’re not surprised by Judge Chen’s ruling, we’re gratified by an outcome that affirms established case law and preserves reasonable exceptions for permitted events,” said Herrera. “Ironically, the nudism advocates’ equal protection claim raised legal questions about the validity of exceptions that the Board and Mayor approved, which allow nudity at events like Bay to Breakers and the Folsom Street Fair. The plaintiffs took an unlikely position in their case that if they couldn’t be naked everywhere, no one could be naked anywhere. We believed their legal challenge to be baseless, and we’re grateful that the court agreed.”
The court found that the nudism advocates’ challenge to the ordinance based on the First Amendment lacked merit because “public nudity alone is not expression protected by the First Amendment,” and because the ordinance was “not substantially overbroad.” Judge Chen additionally rejected plaintiffs’ arguments that exemptions for such permitted events such as Bay to Breakers and the Folsom Street Fair violated constitutional Equal Protection guarantees, holding that plaintiffs failed to demonstrate that the exceptions lacked a rational basis. Though the nudism advocates’ facial challenge to the ordinance was dismissed without leave to amend, the court left the door open for nudism advocates to amend their pleading with subsequent “as-applied” claims, provided they were able to do so.
The lawsuit was originally filed on Nov. 14, 2012 by four nudism advocates: Mitch Hightower, whose “nude-in” events at the busy intersection of Castro and Market Streets intend to encourage “peace and fellowship among nudists”; Oxane “Gypsy” Taub, who operates a website called “mynakedtruth.tv,” and produces a television program on nude activism; Russell Mills who operates a website called “naked-truth.net”; and George Davis, the self-described “Naked Yoga Guy” who was a candidate for Mayor of San Francisco in 2007.
The ordinance that was challenged in the litigation amended San Francisco’s Police Code to prohibit individuals from exposing their genital region on public streets, sidewalks, and most other public rights-of-way as well as on transit vehicles and in transit stations. Policymakers created specific exceptions to allow for nudity during permitted events and festivals, and for children under the age of five. In adopting the legislation, which becomes operative on Feb. 1, 2013, the Board found that unfettered nudity unreasonably interferes with the rights of all persons to use and enjoy public spaces, and harms members of the public who are “unwillingly or unexpectedly exposed to such conduct.”
The case is: Mitch Hightower et al. v. City and County of San Francisco et al., U.S. District Court, Northern District of California, Case No. C-12-5841 EMC, filed Nov. 14, 2012.
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