San Francisco, where it’s legal to be nude at some street fairs, parades and footraces, won dismissal of a lawsuit challenging a new ordinance otherwise banning people from going naked around town.
U.S. District Judge Edward Chen tossed the lawsuit today, rejecting nudists’ claims that the law violates their free- speech rights and saying the ordinance isn’t overly broad. The nudists can re-file the case after the law takes effect Feb. 1 to claim that, as applied to them, it violates the First Amendment of the U.S. Constitution, he said.
“In spite of what plaintiffs argue, nudity in and of itself is not inherently expressive,” Chen said in his ruling. Unlike flag burning or wearing a black armband to protest war, “public nudity in and of itself is not commonly associated with expression of a particular message,” he said.
Four activists sued to block the city law, which prohibits nudity in public streets, plazas and public transportation. The law was introduced by San Francisco Supervisor Scott Wiener, an attorney who lives in and represents the city’s Castro neighborhood, where nude men have gathered in a plaza at a busy Market Street intersection.
The ordinance, enacted in November by a 6-5 vote of supervisors, doesn’t apply to the Gay Pride Parade, the Folsom Street Fair, an annual outdoor leather and fetish party, and the 101-year-old Bay-To-Breakers 12-kilometer (7.5-mile) foot race, events for which the city grants permits. It also doesn’t apply to children under 5 years of age.
The plaintiffs said in court filings that they will suffer “severe and irreparable chilling of their First Amendment right to engage in expressive political speech through their nudity.” Making it a crime to be naked in public infringes on the right to express opposition to the nudity ban, they argued.
They also argued that the ordinance discriminates against people who are nude in public places who aren’t taking part in an exempted event.
“The plaintiffs took an unlikely position in their case that if they couldn’t be naked everywhere, no one could be naked anywhere,” San Francisco City Attorney Dennis Herrera said in an e-mail. “We believed their legal challenge to be baseless, and we’re grateful that the court agreed.”
Christina DiEdoardo, an attorney representing the plaintiffs, said her clients were reviewing the ruling and considering their next move, including whether to file a new lawsuit if someone is arrested for nudity after the ban takes effect.
“The judge has issued a fairly open invitation to re-file an amended complaint,” DiEdoardo said by phone. A new complaint could be filed saying, “We were arrested and we are saying we were engaged in speech against the ordinance,” she said.
The case is Hightower v. San Francisco, 12-5841, U.S. District Court, Northern District of California (San Francisco).
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