Sunday, May 28, 2017

No constitutional right to public nudity

NELSON ESTRADA
Photo: Nelson Estrada

Fortunately, last week the liberal Ninth Circuit Court of Appeals rejected the First Amendment argument by exhibitionists George Davis and Gypsy Taub (Taub v. City County of S.F).


Plaintiffs Oxane “Gypsy” Taub and George Davis …, self-described body freedom advocates, appeal the dismissal of their claims … against the City and County of San Francisco and the San Francisco Police Department … Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Francisco’s public nudity ordinance.

1. Public nudity is not inherently expressive, but it may in some circumstances constitute expressive conduct protected under the First Amendment. Even if Plaintiffs’ public nudity at political rallies was entitled to First Amendment protection, however, we hold that the challenged ordinance is a valid, content-neutral regulation as applied to Plaintiffs’ expressive conduct under United States v. O’Brien (1968). O’Brien is the applicable test here because the ordinance is aimed at “the conduct itself, rather than at the message conveyed by that conduct.”

The challenged ordinance satisfies…[the] O’Brien factors….[T]he ordinance furthers San Francisco’s important and substantial interests in protecting individuals “who are unwillingly or unexpectedly exposed” to public nudity and preventing “distractions, obstructions, and crowds that interfere with the safety and free flow of pedestrian and vehicular traffic.”…San Francisco’s interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive.…[And] “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” The ordinance prohibits only exposure of one’s “genitals, perineum, or anal region,” during daily activities in the streets of San Francisco, which is essential to meet the City’s goals of preventing distraction and offense to citizens not expecting to be confronted with such private parts of other persons’ anatomy….

Plaintiffs [also requested] leave to amend [their] Complaint in order to plead additional facts relating to the expressiveness of their nude rallies and demonstrations. Because we conclude that San Francisco’s public nudity ordinance is a valid regulation under the O’Brien test, even if we assume that more of Plaintiffs’ conduct was likely to communicate a message to those who saw it, Plaintiffs’ complaint would not be saved through further amendment.

Then-Supervisor Scott Wiener's half-assed attempt to deal with the issue: Scott Wiener strikes again and Wiener and the weenie-waggers.


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3 Comments:

At 8:18 AM, Anonymous Anonymous said...

Not to be crude, I am just restating what many before have... how come all these people are old and ugly??

 
At 10:49 AM, Blogger Rob Anderson said...

I don't know, but that's irrelevant. Even if they were all paragons of human beauty, it would be unacceptable.

 
At 9:58 AM, Anonymous Anonymous said...

Yes, but a little less so...

 

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