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.