Federal Judge to Review Nudity Ban
In expectation that San Francisco will adopt a ban against public nudity, a federal judge is set to review the new law early next year.
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.
In response to constituents fed up with naked men who congregate at a plaza in the Castro, gay District 8 Supervisor Scott Wiener introduced an ordinance to ban people from being nude 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, on port property, and in restaurants.
Nudists and their supporters have fought back, holding several nude-ins to protest the law. They argue it not only tramples on people’s First Amendment freedoms but also would negatively impact the city’s reputation with tourists and other visitors.
The Board of Supervisors was expected to adopt the new ordinance at its meeting Tuesday, November 20 (After the Bay Area Reporter’s print deadline this week the supervisors on a 6-5 vote passed the nudity ban. See story http://ebar.com/blogs/?p=5136). If a majority of the 11-member board votes a second time in December to support the nudity ban, then Mayor Ed Lee is expected to sign it into law.
The prohibition against anyone over age 5 from exposing his or her genitals, perineum, or anal region in public would take effect February 1 unless the court blocks it. Due to the pending litigation, the date for when the ordinance would become law was pushed back to give the court time to hear the case.
As the B.A.R. noted last week in an online blog post, San Francisco-based lawyer Christina A. DiEdoardo filed the class action lawsuit on behalf of four nudists claiming the proposed law violates their freedom of expression and the equal protection clause of the U.S. Constitution.
"The proposed legislation impermissibly restricts the free speech and association rights of plaintiffs and all similarly situated persons as it attempts to criminalize nudity even when engaged in for the purpose of political advocacy," states the lawsuit. "Furthermore, the proposed ordinance violates equal protection as it exempts certain types of speech - i.e. that taking place at city-sanctioned events - from enforcement."
The named plaintiffs include 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.
DiEdoardo had tried to obtain a temporary restraining order to prevent the supervisors from voting on the ban, but the judge rejected her request. Instead, Chen agreed to consider a motion for an injunction against the proposed ordinance that would prevent the ban from going into effect if passed by city leaders.
"I have not seen anything, and the supervisors have pointed to no statutes, that said they have the ability to regulate dress codes," DiEdoardo told the B.A.R. in a phone interview this week. "Outside of Catholic schools, violating a dress code is not a penal offense. That is what they are trying to do here."
Under the proposed law, a first offense would come with a $100 fine, while repeat offenders could face a $500 fine or a year in county jail. Any convictions due to the ordinance would not constitute a sex offense for purposes of the state sex offender registry.
In both the lawsuit and during the interview, DiEdoardo claimed that her clients "are entitled" under the First Amendment to be nude in public as they are engaging in "expressive speech." The city cannot ban such speech, she said, merely because others are offended by seeing people nude.
"Remember, the First Amendment is there to protect speech that by its nature is unpopular," said DiEdoardo. "Those people who argue we don’t want to see those people in the Castro should listen to themselves. It is the exact same words used against transgender people who nobody wanted to see outside of the Tenderloin 40 years ago."