Re: City Council on Public Nudity

[Debbie Gray <dgray@uidaho.edu>]

For some interesting reading on public nudity and a collection of state
and local laws in re. to public nudity, see:
http://www-hep.phys.cmu.edu/~brahm/legal.html

If you don't have time, here are some interesting points:

1. Who has public nudity laws banning the exposure of "genitals, vulva,
pubis, pubic symphysis, pubic hair, buttocks, natal cleft, perineum, anus,
anal region or pubic hair region of any person, or any portion of the
breast at or below the upper edge of the areola thereof of any female
person" generally excluding those under the age of 10 and those
breastfeeding?

New York, Los Angeles, San Diego, San Jose, Arizona, Minneapolis Parks and
Rec, South Carolina, just to name a few. My point is that all the people
who think this is just some hilarious gaffe in a backwater state are
probably living under the exact same laws in their own
states/municipalities.

2. Breastfeeding is legally seen as a woman's RIGHT. Therefore, laws don't
'legalize' breastfeeding while outlawing nudity, they protect the RIGHT to
breastfeed. New York even includes breastfeeding as a civil right (see the
La Leche League for further info). Therefore, this shouldn't even be
included in the discussion of public nudity (though it is good to have
legal clarification for those officious members of the public).

3. "There is no federal law against nudity, but _neither is it a
Constitutionally protected right_.  Its legality is therefore determined
by state and local laws.

---The U.S. Supreme Court, in _Barnes v. Glen Theater, Inc._, 111 S.Ct.
2456 (1991) [*09], "concluded that the enforcement of Indiana's public
indecency law to prevent totally nude dancing does not violate the First
Amendment's guarantee of freedom of expression."  Chief Justice Rehnquist
wrote, "This governmental interest is unrelated to the suppression of free
expression, since public nudity is the evil the State seeks to prevent,
whether or not it is combined with expressive activity.""

Therefore, public nudity laws are interpreted as not suppressing the right
to freedom of speech but rather they are suppressing the behavior
ofnudity. If you substitute any other 'criminalized' (defined as such by
laws)  behavior for nudity, it helps conceptualize it. Eg. a law against
murder aims to supress murder, not to supress the freedom of
expression one could use in killing someone.  (yes, I know that is an
extreme example but i am surprised nobody's tried to argue their right to
murder someone under the freedom of expression)

4. Most of the laws include an exemption for 'artistic performance' such
as a theatre or musical. So perhaps the carwash women might
claim to be 'performance artists'?

4. Here's an interesting case which discusses the 'unconstitutional
gender-based classifaction' and the judge's ruling about the
differences between men and women in the world of common sense (who cares
about legislating morality, I'd rather legislate common sense!)

Lee Ann Turner was arrested on September 8, 1983, for sunbathing topless
at Wirth Lake in Minneapolis.  Turner was found guilty and appealed on
First Amendment grounds of free expression.  The appeals court noted that
the Minnesota Supreme Court held that "nudity is not protected expression,
but conduct, which the city has a substantial interest in regulating via
its police power... PB2-21 does not unconstitutionally infringe on
Turner's right to free speech granted by the United States or Minnesota
constitutions." [*10]

Turner also claimed that "the ordinance creates an unconstitutional
gender-based classification," this violating the equal protection clauses
of the U.S.  and Minnesota constitutions.  The appeals court concluded:
"PB2-21 advances a legislate governmental interest in the preservation of
public decency and order... The female breasts, unlike male breasts,
constitute an erogenous zone and are commonly associated with sexual
arousal.  Common knowledge tells us that there is a real difference
between the sexes with respect to breasts, which is reasonably related to
the preservation of public decorum and morals...  There being such a
difference between the breasts of males and females (however undiscernible
to the naked eye of some), and that difference having a reasonable
relationship to the legitimate legislative purpose which it serves, the
ordinance does not deny equality of rights or impose unequal
responsibilities on women.  Protection of society's norms is a legitimate
legislative goal.  The slight difference in clothing requirements imposed
on the two sexes is necessary if the legislative purpose is to be
served... In certain narrow circumstances, a gender classification based
on clear differences between the sexes is not invidious, and a legislative
classification realistically based upon those differences is not
unconstitutional.  When men and women are not in fact similarly situated
in the area covered by the legislation in question, the Equal Protection
Clause does not mean that the physiological differences between men and
women must be disregarded.  While those differences must never be
permitted to become a pretext for invidious discrimination, no such
discrimination is presented by this case.  The Constitution surely does
not require a State to pretend that demonstrable differences between men
and women do not really exist."

Anyway, that's quite an interesting site (as is: Naturist Action Committee
at http://nac.oshkosh.net/) and it seems that the city council has come up
with wording that is very similar to case law across the country. As for
selective enforcement, I am glad that police officers do have the power of
discretion. Reaching far back to my criminal justice classes, their is a
difference between administration and ministration of justice. This allows
the police to analyze the situation and make decisions on a case by case
basis. Otherwise, we might as well have robot police who immediately
ticket or arrest every single offender for every single crime, large or
small.

Personally, I don't see the 'topless carwash' as a political statement,
expression of equality, or civics lesson. To me it is simply a few women
who want to make quick money. The quote in the Spokesman by Daisy (?)
about what she would have to do if the carwash was shut down? "Job" is all
she said ...

Debbie

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  Debbie Gray      dgray@uidaho.edu      http://www.uidaho.edu/~dgray/
  We must be willing to get rid of the life we've planned, so as to
  have the life that is waiting for us." --Joseph Campbell
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