Police say, keep your pants on.

Photographer: Brendan Smialowski/AFP/Getty Images

Protesting Nude in Portland Should Be Protected

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
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The First Amendment protects your right to burn the flag in protest. What about getting naked to draw attention to your cause? An Oregon man is intent on finding out -- and so far, the courts have ruled against him. His case deserves attention because of the light it sheds on a core question of free speech.

According to the Portland Oregonian, as linked to by the indispensable How Appealing blog, Matthew T. Mglej took off all his clothes one day in May 2014, played the violin as God made him, then sat down amid posters he’d made and waited for the Portland police to arrest him. They did, for violating a city ordinance that prohibits self-exposure in public. But, perhaps hoping to make Mglej go away, prosecutors later dropped the case.

Mglej wasn’t prepared to give up, though, and he has sued the city for arresting him in violation of what he says were his First Amendment rights. He told the court he was inspired by the case of a man who was cleared for violating the same ordinance in 2012 when he took off all his clothes at an airport checkpoint to demonstrate his frustration with Transportation Security Administration procedures.

The federal judge rejected Mglej’s argument, saying that to merit First Amendment protection, the nudity would have to be part of the protester’s message. According to the court, it wasn’t. “I don't think an objective observer would have known why the plaintiff was nude that day,” the judge said, according to the Oregonian. “I think in fact his posters clouded his message and made it more difficult.”

Is this the right legal standard? If so, did the court apply it correctly? The case falls, I think, under a doctrine that’s received some close attention from the U.S. Supreme Court in recent years: that of a law that generally speaking applies to conduct, but which, when applied to specific facts, impinges on the content of speech.

The court clarified and developed this doctrine in the landmark case of Holder v. Humanitarian Law Project, where it upheld the material support for terrorism statute as applied to U.S. nonprofits that wanted to train groups on the State Department terror list in nonviolent advocacy. There the court said the correct standard was to apply what it called “more rigorous scrutiny” to such situations -- something just short of the court’s highest standard but tougher than the intermediate scrutiny it would apply if a general law burdened speech only incidentally.

The case from which the Holder doctrine was derived also involved a courthouse. In the 1971 case of Cohen v. California, the justices permitted a man to wear a jacket with an obscene anti-draft slogan inside a California courthouse.

That would seem to fit Mglej’s case. The city ordinance doesn’t usually burden speech. But because Mglej undressed as part of an intentional protest, enforcing the law against him burdened his symbolic speech rights more than incidentally.

The district court seems to have wanted to sidestep this analysis under Cohen by deciding that Mglej’s nudity wasn’t closely connected to his message. But this analysis substitutes the judgment of the court for that of the speaker. Mglej wasn’t taking off his clothes because he wanted some sun. He wanted to draw attention to his protest. That’s like making a big or colorful sign -- part of the speech act that should be considered within the discretion and rights of the speaker.

Maybe the nudity in the protest was ineffectual. But the First Amendment protects all speech, not just the effective kind.

Of course, the city’s ordinance is still constitutional as regards to nonpolitical nudity. But Mglej should press on to the court of appeals, and demand that the right legal standard be applied to his case -- and applied correctly. The principle goes beyond his individual act. Which is why we have the First Amendment in the first place.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net