Florida county’s public nudity law survives First Amendment challenge
A Florida county’s public nudity ordinance, which bars exotic dancers
from performing nude but allows nudity that is part of a “bona fide live
communication,” does not violate the First Amendment, a federal appeals court
panel has ruled.
The Orange County ordinance generally prohibits nudity, providing that
“it shall be unlawful to knowingly or intentionally appear nude in a public
place.” However, county officials exempt nudity that is “part of a bona fide
live communication, demonstration or performance … wherein such nudity is
expressive conduct incidental to and necessary for the conveyance or
communication of a genuine message or public expression.”
Exotic dancer Kim Gatena challenged the ordinance on First Amendment
grounds in July 1998. She contended in her federal lawsuit that “the government
cannot pick and choose what type of nude dancing and entertainment it will
She argued that prohibiting her nude dancing while allowing nudity at
the play “Six Appalling People” shows that the law discriminates on the basis
of both content and viewpoint.
However, a federal judge dismissed the lawsuit in 1999, determining
that it was governed by a 1995 decision by the 11th U.S. Circuit Court of
Appeals, Café 207, Inc. v. St. Johns
County, which upheld a similar ordinance from a First Amendment
On appeal, a three-judge panel of the 11th Circuit last week rejected
Gatena’s appeal, relying on the Café 207,
The panel determined that the public nudity exemption in Orange
County’s law was “virtually identical” to the exemption in St. Johns County.
The panel also cited the U.S. Supreme Court’s recent decision in
City of Erie v. Pap’s A.M. for the
proposition that public nudity ordinances are generally considered to be
content-neutral, rather than content-based.
“Following Pap’s, this focus renders the ordinance content-neutral,”
the panel wrote in its July 11 opinion in Gatena v.
County of Orange.
Steve Mason, Gatena’s attorney, called the panel’s decision a
“short-shrift nothing opinion.”
“The panel dodged the issue,” Mason said.
He said he would seek full-panel review. “My nature is that I’m
dissatisfied with the result and the 11th Circuit ducked the issue.”
“I’m going to take this case to the U.S. Supreme Court,” Mason
Joel Prinsell, senior assistant county attorney, said he was pleased,
but not surprised, by the court’s ruling. “The case follows a similar decision
from St. Johns County,” he said.