Why No City Ordinance is Needed to Ban Public Nudity In San Francisco

While other cities fret about underfunded pension liabilities, here in San Francisco the latest keruffle is over the supposed “problem” of nudists in public spaces.

Of course, this being San Francisco, the measure is being pushed by the unfortunately-named Supervisor Scott Weiner, whose main target (based on published reports) seems to be the supposed practice of some nudists to wear “cockrings” or other devices to draw attention to their genitalia.

Lost in the debate are three fundamental (at least to a criminal defense attorney like me) questions. First, is the conduct targeted by the proposed ordinance a protected activity? Second, assuming the government can restrict the behavior, are extant State laws sufficient? Third, has state legislation already preempted the field of regulation of nudity in public spaces?

With regard to the first question, the general trend by courts in California seems to be not to grant First Amendment protection to public or private nudity unless the nudity is accompanied by or part of ” ‘some mode of expression which itself is entitled to first amendment protection.’ ” Elysium Institute, Inc. v. County of Los Angeles 232 Cal.App.3d 408, 424 283 Cal.Rptr. 688 (2nd Dist. 1991)[internal citations ommitted].

Of course, this raises as many questions as it answers–and it’s almost an invitation to anyone who wants to go sky-clad to chant political slogans or carry a sign when they do so. What about a naked man with an #occupy cockring?

It may, however, explain why Supervisor Weiner says wants to exempt events like the Folsom Street Fair and presumably, though he didn’t say so explicitly, the Dyke March and the Trans March from the proposed ordinance. Simply put, he’s not doing it out of kindness–those events, particularly the Dyke and Trans marches, are clearly political speech subject to First Amendment protections.

With regard to the second question, Penal Code Section 314(1) provides “Every person who willfully and lewdly…1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby…is guilty of a misdemeanor” (Emphasis added).

Of course, this begs the question “What does ‘willfully and lewdly’ mean for the purpose of the statute? Fortunately, the California Supreme Court settled this question over 40 years ago when it decided In re Smith, 7 Cal.3d 362, 497 P.2d 807 (1972).

In Smith the Court found a man who was arrested for indecent exposure under PC 314(1) was entitled to habeas corpus relief because “The necessary proof of sexual motivation was not and could not have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual ‘activity.’” (J. Mosk). Instead, the People would have to establish something more, such as “additional conduct intentionally directing attention to [the defendant's] genitals for sexual purposes” if it wanted to convict Mr. Smith of violating PC 314(1).

Similarly, a juvenile who “mooned” (i.e. exposed his buttocks) to traffic for reasons of adolescent jackassery could also not be found delinquent, since he lacked the lewd intent required by the statute (although he absolutely had the intent to annoy people) See In re Dallas W. 85 Cal.App.4th 937, 102 Cal.Rptr.2d 493 (2nd Dist. 2000).

Going back to the cockring “problem”, since the purpose of a cockring is to draw attention to the wearer’s genitals, wearing one in public while nude would appear to make one subject to arrest for violating PC 314(1) based on the plain language of the Smith case. Thus, existing state law is more than sufficient to deter the supposed problem to be remedied and the ordinance is unecessary.

What about the final question–whether or not the State has preempted this area of regulation? Unfortunately, here things get murky. While a 1975 case out of the Second District upheld a Los Angeles ordinance banning public nudity in parks (on the somewhat tortured ground that the ordinance did not purport to ban all nudity across the City’s public spaces, but only regulate it as a time/place/manner restriction) see Eckl v. Davis 51 Cal.App.3d 831, 124 Cal.Rptr. 685 (2nd Dist. 1975) and held that the L.A. ordinance was not preempted by PC 314(1), it is unclear how modern courts would treat a similar issue today. Since Supervisor Weiner aims to ban nudity on public sidewalks as well as parks and beaches, the proposed ordinance has a far wider ambit than the measure challenged in Eckl and so the holding in that case is much less helpful to his case than it could be.

The bottom line is that–as with so many other public policy issues–what’s needed is not additional laws, but enforcement of existing laws. That would solve the “problem” of the nudists with cockrings, to the extent it’s not anecdoctal and actually exists. With regard to the wider issue of those who object to nude people in public, there’s an easy remedy which costs no public money, requires no court time and consumes no scarce jail space: look away.

–CAD

12 Comments

Filed under Criminal Law, Sex Crimes

12 Responses to Why No City Ordinance is Needed to Ban Public Nudity In San Francisco

  1. Joe

    Perfectly written and logical arguments. Thank you for this. Hopefully the ban does not go through!

  2. Paul J. Lucas

    Great piece except that Wiener’s ordinance is not trying two ban nudity in parks (which is already illegal in SF due to a Park & Rec rule) or on currently clothing-optional beaches (which, in SF, are on federal land).

  3. Christopher

    Thank you for this piece, very interesting. But it assumes that “cock” rings have only one function, as does the general public unfortunately, and that is just not true and this truth makes the second point above just as “murky” as the third.

    Not all males wear “cock” rings (while nude in public or not) with the intention to draw attention to their genitals. First, the word “cock” is loaded with sexual innuendos and therefor implies sexual intentions when none may be present. Some prefer and it is much more respectful to call them “penis” rings, for the smaller rings that are only meant to be worn on a penis, or “genital” rings for the larger ones. Some claim there are legitimate medical reasons for wearing one, other than help in maintaining an erection. It’s something to do with keeping their testicles in the correct place. I don’t know much about that so I won’t go into detail on this point, but should a public nudist who legitimately needs one for such a reason be denied it? Some wear them simply as an act of decoration & celebration for their own satisfaction and could care less what anybody else thinks or if anyone even notices, just like any other jewelry. (A penis ring has a much less radical impact to the body than piercing an ear for an earring does.) Jewelry has basically a few purposes, personal satisfaction, drawing attention to the wearer, and personal (including sexual, artistic, religious and political) expression (which can overlap with the first two), but are all those intentions always in play each time a piece of jewelry is worn? Of course not. In most contemporary cultures we are programmed to think that human genitals are bad and shameful, in the most simplistic of terms, especially male genitals. (The fact that far too many males use their genitals in acts of violence doesn’t help the matter, but that’s another issue – except I’ve never heard of a nudist out in public raping, molesting or abducting anyone. Nudists tend to have too much respect for other people to engage in such awful behaviors and are under too much public scrutiny anyways. But I digress…) This negative cultural mindset that male genitals are bad and shameful is really a form of self-hatred. Females may never realize this, but some males find this really oppressive. It’s so unhealthy to go through life thinking, consciously or unconsciously, that a significant part of your body is “bad” and you should be ashamed of it – that’s just nuts (pun not intended, but welcome). And so some males wear “penis” or “genital” rings to counteract such oppressive attitudes for their own satisfaction and peace of mind. It’s a way to say to themselves, “my body is O.K. as is”, and that is very healthy and has nothing to do sexual intentions. And some do wear penis or genital rings in public while nude to publicly protest such oppressive attitudes and the laws that codify them, and doing so could be intended as an act of political free speech.

    If the laws and court decisions regarding nudity are based on the intention or motivation of the nudist (is the nudist intending to be lewd or not?), then it can get very difficult to determine if they are indeed guilty of a crime. What is the intention of the wearer of a piece of jewelry? Are nudists, including those who wear jewelry on their genitalia, guilty until proven innocent or innocent until proven guilty? Proof is needed, or should be needed, and genital jewelry is not, or should not, be such proof.

    Hopefully some of you legal-types can use something here to defend someone’s innocence or even to defend our collective rights to freedom of speech and expression.

  4. Anonymous

    I wish I were allowed to attach photos here — maybe then some of you would realize it is not just about cock rings.
    It is not enough to just look away.

  5. I find it funny that the one person who says its not just about the cock rings and its not enough just to look away is the only one who is anonymous in their comment. It is enough to look away. Truth is, if they were hot, then it wouldn’t be an issue. Just because they aren’t what you want to see, doesn’t mean they shouldn’t have those same freedoms.

    As for the post itself, BRAVO!!! That is exactly what many have been saying for some time. The one argument I did hear from Scott Wiener yesterday in the public hearing was that a conviction for the current penal code would place someone on a sex offender list. I feel we need to fix the existing code rather than legislate new laws. Deal with the offending parties directly who are being lewd, and allow true nudists to live their lives the way they want. Deal with the behavior and not the act.

    - Non Nudist for Nudity Freedom
    Desmond Perrotto

  6. preston@the-beach.net

    This is a wonderfully written piece. And it does show the base need to not have it. But is also exposes the confusion surrounding current laws and ordinances.

    The Nudity in the Castro has become a tourist attaction on many levels. For one, my partner and I travel from Miami to participate and enjoy the unique envoinment that is San Francisco.

    Once things like this start disappearing, the lure to the great tourist engine will also start to dissipate as it will be just another beautiful city, but with too cold and miserable weather. But not banning it at Fairs and Events is the financial side of things talking. When the police in New Orleans started cracking down on “flashing” at Mardi Gras and Southern Decadance the shop owners felt the impact. Not the tourists. They just didn’t come and spend their money!

    The allowance of non-lewd public nudity is just another one of the economic movements in that wonderful city on the bay!

  7. Castro Neighbor

    Preston makes a great point, and truly highlights why the ban is necessary. A Miami resident travels across the country so that he can strip naked and expose his genitals in MY neighborhood. Some of us actually live here, you know. This isn’t JUST a tourist destination. This isn’t Disneyland. I have to walk through Castro and Market on a daily basis and maybe, just maybe, I don’t want to see genitals (hot or not, thank you) on my way to Walgreens. Wrong time, wrong place, wrong manner. Ban it.

  8. Castro Neighbor

    Oh, and may I add: the other day I was walking through my neighborhood and had the distinct misfortune of seeing one of the exhibitionists (I won’t mention his age or his physical size. It doesn’t matter) with precum dripping off the tip of his penis. Yes, precum. Try to tell me, with a straight face, that these exhibitionists are not in it for the sexual thrill of exposing themselves to the public.

  9. I have to wonder if how this will play out will primarily be a matter of local politics. I get the distinct impression that the main impetus of the proposed ordinance is simply the near-daily gathering of middle-aged men at Jane Warner Plaza (right in front of Twin Peaks Tavern at 401 Castro Street. If so, then why just give Scott Wiener what he needs: amend his proposal and outlaw nudity there and perhaps Harvey Milk Plaza across the street. Those were the terms of the anti-camping (no sleeping, no smoking, etc.) law he proposed and was enacted in February 2012. As far as I am concerned, no nudity on public transportation might also be a reasonable concession. I agree with Christina that a citywide ban is not needed.

  10. Anonymous

    I, myself, would move to a place where nudity were allowed. Unfortunately, San Francisco is too expensive to live in. I’ve been to several nude beaches on the eastern seaboard and watching those people mingle with no other intent than to express their freedom and enjoy themselves. Sure they look south once in a while, but for the most part, all they do is be regular, normal people.Castro neighbor needs to get it straight. If you don’t like it, don’t look. If you have to notice people being themselves, there are things called U-Hauls and you can do another thing called packing up and moving. I’m from NY and would love to see my township allow this behavior.

  11. bear on the peaks

    i live in the castro neighborhood. watching men every day waving their oiled-up genitals at traffic, wearing wigs and sunglasses and walking around shaking their junk at everyone is not my idea of free speech. amy neighbors, gay and straight, feel they are now one step closer to returning to doing their shopping, etc. in the neighborhood and the diversity will return to the community instead of having all the old, white naked males hold us hostage. if you want to be naked, then go naked – but use another neighborhood; you have worn out your welcome in the castro. and for christine diedoardo, i am someone who for years has marched with transgender people and supported their cause but i’ve decided to give that a rest. you disappoint me greatly.

  12. Pingback: Perennial Nudist Candidate, to Announce Bid to Unseat Scott Wiener | NaturistDatingOnline

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