Put your clothes back on. That was the message from U.S. District Judge Edward Chen Tuesday. He dismissed the lawsuit by a group of urban nudity advocates and denied their request to block enforcement of a new San Francisco law banning public nudity.
Chen found the city ordinance does not violate First Amendment rights of free expression because nudity alone is “not inherently expressive.” He also found the city law “does not conflict with state law” and was not overly broad.
So much for the “body freedom” advocates that gather regularly at a Castro Street park for “nude-ins.” Those activities launched the effort to pass a public nudity ban in San Francisco.
The open-minded city does have exceptions for children under five years and events that have city permits, including the annual gay freedom day parade, Folsom St. Fair and Dore Alley fair.
Mitch Hightowner, Oxane “Gypsy” Taub, George Davis and Russell Mills challenged the law set to take effect February 1. They claimed if violated freedom of expression and equal protection rights and sought an injunction.
And if they couldn’t convince Judge Chen, a former lawyer for the ACLU, well, they were pretty much out of luck.
Instead, Chen agreed with the city’s request to dismiss the lawsuit.
“In spite of what the plaintiffs argue, nudity in and of itself is not inherently expressive,” Chen wrote, pointing to the 2000 U.S. Supreme Court case holding that nudity was not an expressive condition.
“Even if a person intended to convey a particular message simply by walking in public nude, the likelihood is far from ‘great that the message would be understood by those who viewed it,’ at least absent any other context to suggest that the nudity is intended to convey a particular message,” he said.
However, once the law goes into effect, Chen said his ruling would not prevent them from again seeking an injunction based on whether the law is applied properly.
Case: Hightower v. San Francisco, No. 12-cv-5841EMC