Bike-riding protesters fail to topple anti-nudity ordinance

Thursday, June 17, 2010

Bicycle-riding protesters wore only underwear or body paint in San Diego on June 12 in their demonstration against oil dependency. The protesters, including event organizer Sarah E. Bush, had to don minimal covering because a federal judge had rejected their request for a temporary restraining order challenging the city’s anti-nudity ordinance.

As for protesting in the nearly nude, Bush told “It grabs people's attention and it encourages people to love their bodies and not to see it as something just sexual, but as a tool to get us around.”

Bush contended in her June 1 federal lawsuit that the anti-nudity ordinance infringes on First Amendment rights because it “bans all public nudity based on the sole justification of protecting morality without regard to the political and artistic value of the petition.”

In a June 11 opinion, U.S. District Judge Larry Alan Burns rejected Bush’s request for a temporary restraining order in Bush v. City of San Diego, writing that she was “unlikely” to prevail on her First Amendment claims. “The ordinance merely prohibits public nudity, and by its terms regulates conduct alone,” the judge wrote. “Nothing in the text [of the ordinance] suggests a purpose to suppress speech or any particular message.”

Burns evaluated Bush’s claim under the test articulated by the U.S. Supreme Court in United States v. O’Brien (1968). In O’Brien, the Court upheld the conviction of a draft-card burner and established a standard that applies when an activity involves both expression and conduct. Under the O’Brien test, a government regulation passes constitutional review if (1) the government has the power to pass the regulation; (2) the government has a substantial interest in the regulation; (3) the government interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than necessary to achieve the government’s objectives.

Burns concluded that San Diego’s anti-nudity ordinance passed all parts of the O’Brien test. He first noted that the city clearly had the power to pass an anti-nudity law. Next, he determined that the law advanced the government’s interest in public safety. “Naked people can and do draw crowds, some of whom may react to their presence in hostile or disorderly ways,” he wrote.

He also determined that the law was not designed to suppress free expression but to promote public health and safety. The law also advanced the government’s interest in shielding people from being unwillingly exposed to nudity.

Finally, Burns determined that the protesters could still convey their messages while wearing a modicum of clothing. He drew an analogy between the San Diego case and the Supreme Court’s decision involving nude dancers in City of Erie v. PAP’S A.M. (2000), in which the justices ruled that Pennsylvania city officials could require exotic dancers to don G-strings and pasties. “Even Tarzan and Jane could deliver the riders’ message without running afoul of the ordinance,” Burns wrote.

According to news reports, Bush and about 100 people participated in the nearly nude bike protest. Police said no arrests were made.

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