Ironically, plaintiffs’ equal protection claim seeks to undermine exceptions allowing nudity at permitted events like Bay to Breakers, Folsom Street Fair
SAN FRANCISCO (Dec. 13, 2012) — City Attorney Dennis Herrera today moved to dismiss a federal Constitutional challenge to the recently enacted ordinance generally banning public nudity in San Francisco, except for certain permitted events and for children under the age of five. The City’s motion filed in U.S. District Court this morning comprehensively dismantles arguments by the nudism advocates who filed the lawsuit last month that the City’s ordinance violates their rights under the U.S. Constitution’s First and Fourteenth Amendments, and is also preempted by California law.
“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,” said Herrera. “Ironically, the only novel legal theory plaintiffs put forward in this case is an equal protection claim that could actually undermine exceptions that allow nudity at permitted events like Bay to Breakers and the Folsom Street Fair. The nudism advocates seem to have taken the position that if they can’t be naked everywhere, no one can be naked anywhere. Fortunately, the legal challenge is without a basis in the law, and we’re confident the court will dismiss.”
The lawsuit was 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 purports to produce 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.
Filed nearly three weeks before San Francisco’s Board of Supervisors actually passed ordinance on Dec. 4, the plaintiffs originally sought a motion for a temporary restraining order to halt the legislative process. U.S. District Court Judge Edward Chen did not hear that motion, but opted to consider the challenge instead as a petition for a preliminary injunction, once the ordinance was enacted.
The ordinance being challenge 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 festivals like the San Francisco LGBT Pride Parade, the Bay to Breakers foot race, and Folsom Street Fair. 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.” Herrera’s pleading notes that even such minimal clothing as a G-string would satisfy the ordinance’s requirements.
The case is: Mitch Hightower et al. v. City and County of San Francisco et al., United States District Court, Northern District of California, Case No. C-12-5841 EMC, filed Nov. 14, 2012.
PDF of the Motion to Dismiss Legal Challenge to S.F. Public Nudity Ban Presskit (Dec. 13, 2012)