Do American nudists have any constitutionally protected rights to practice nudism in public places? Laws that ban public nudity are a longstanding fixture of state statutes and municipal codes throughout the nation. The constitutionality of such laws and ordinances has been repeatedly affirmed by the courts, including the U.S. Supreme Court. This suggests that American nudists have no constitutionally protected civil rights when it comes to accessing public beaches and public lands for the purpose of practicing nudism. But perhaps such an inference is not entirely or factually correct.
In this, the first of a series of articles, Dallas Nudist Culture revisits the topic of civil rights for nudists in an attempt to answer the question posed.
There have been recent attempts to constitutionally attack local laws banning public nudity through the federal courts. One of the most recent was a class action lawsuit filed in the United States District Court, Northern District of California that challenged the constitutionality of an ordinance banning public nudity passed in 2012 by the San Francisco Board of Supervisors.
The San Francisco ordinance was introduced by Scott Wiener, a city supervisor representing the Castro district after, in his opinion, an increase in the number of habitual “nudists” and a rise in complaints from district residents and business owners resulted in “the nudity situation in the Castro becoming extreme.”
A group of four activists that included Gypsy Taub, sued in federal court seeking to block the new ordinance from taking effect. The legal argument on which the lawsuit was principally based was that the ordinance violated plaintiff’s First Amendment freedom of expression rights (free speech).
In January 2013, on a motion by the San Francisco City Attorney, U. S. District Court Judge Edward Chen dismissed the lawsuit on the grounds that the plaintiff’s claims that the law violated free speech rights lacked merit.
In his ruling, Chen stated, “In spite of what plaintiffs argue, nudity in and of itself is not inherently expressive. Unlike flag burning or wearing a black armband in protest of war, public nudity in and of itself is not commonly associated with expression of a particular message.” (“Judge Tosses Challenge to San Francisco Nudity Ban.” CBS San Francisco. N.p., n.d. Web. 31 Mar. 2015.)
In part, Chen likely relied on U.S. Supreme Court opinions in cases like 501 U.S. 560 – Barnes v. Glen Theatre Inc. when making his ruling on the case.
In his concurrence with the Barnes judgement Justice David Souter wrote, “Although such performance [nude] dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing.” (“OpenJurist.” 501 US 560 Barnes v. Glen Theatre Inc. N.p., n.d. Web. 31 Mar. 2015.)
At the heart of Justice Souter’s analysis was likely the longstanding view by the Supreme Court that the First Amendment explicitly protects “the freedom of speech [and] of the press”—oral and written speech—not “expressive conduct.” But as Justice Scalia noted in Barnes, “This is not to say that the First Amendment affords no protection to expressive conduct” but “the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” (“OpenJurist.” 501 US 560 Barnes v. Glen Theatre Inc. N.p., n.d. Web. 31 Mar. 2015.)
Where it seems Justice Souter erred in his analysis was in his failure to recognize that when it comes to nudity as practiced by nudists and naturists, nudity is not merely the voluntary assumption of an unclothed condition. It is and has always been inherently and robustly expressive.
At the beginning of the twentieth century, the philosophy of the modern nudist movement came into being in 1903 with the publication of the book “The Nude” by German author Richard Ungewitter. He was the first to write about the fundamentals of nudist movement.
Later in Berlin, Adolf Koch, a professor who taught in a working class neighborhood began the practice of instructing students in nude physical outdoors exercise with the aim of promoting better health. The movement, initially called Nudism, grew and became known as Freikörperkultur (“free body culture”).
From its inception in Germany, the practice of going nude has not only been followed as a healthful practice but Nudism as a movement in large part has been a protest against and a rejection of the restrictive social modesty norms that developed in Western culture during the Victorian era that were primarily based on conservative religious values.
It’s seems that in Barnes, Justice Souter made no distinction between an individual randomly deciding to strip naked and expose his genitals in the public square and the philosophical custom of non-sexual nudity as practiced by nudists.
With respect to the first example, obviously a person randomly stripping off in a public place is simply assuming a voluntary state of nudity and may not be expressing any substantive message. In the case of a nudist appearing nude in public on a public beach however, there is always a persuasive message being communicated and thus it seems premature for nudists to abandon a First Amendment argument.
In instances like the Taub case, the issue has been that the expressive conduct argument has been ineffectually presented by using the same reasoning that the courts have already rejected numerous times in the past.
While there may still remain potential for nudists gaining civil rights via First Amendment protections, the Fourteenth Amendment seems a more likely and fertile avenue toward those ends. That will be focus the next article in this series, “Civil rights for nudists―Part II.”
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