Nude performance group challenges Berkeley, Calif.’s public nudity law

Monday, September 21, 1998


The X-plicit Players, a nude performance group based in Berkeley, Calif., has sued the city, the mayor and the chief of police in federal court, contending the city's public nudity law violates free-expression rights.


Group directors Debbie Moore and Marty Kent filed the lawsuit last week before Sunday's 7th annual Berkeley Nude and Breast Freedom Parade. Moore and Kent said that “we feel that participants in the parade need protection” from the law.


Kent said that there were “no police encounters at all” during Sunday's parade. “I think they made every effort to avoid us,” he said.


The group has battled city officials over the public nudity ordinance for several years. Moore and Kent say they have “endured years of legal harassment for our nude street theater.”


The issue took center stage in the community when, in a well-publicized 1996 case, two members of the X-plicit Players were acquitted by a jury.


In response to that acquittal, the City Council last July approved an amendment to its anti-nudity ordinance which eliminated the right of a jury trial for those charged with violating the law. Under the current ordinance, the police may issue fines to those appearing nude in public.


Moore and Kent said in their statement: “We've spent an enormous amount of time and energy attempting to educate people in city government about the artistic, political and human values of our non-sexual street performances. Most of these people have been unwilling to even view our performance a single time. They've continuously ignored the actual community values of Berkeley. With this last amendment to the ordinance, they've gone out of their way to silence the voice of the community. We are committing our trust to the federal courts to end this abuse of power by the city government.”


However, city attorney Manuela Albuquerque insists the ordinance is constitutional. “The courts have made it quite clear that public nudity laws are constitutional,” she said. “Our law allows nude performances in a theater before consenting adults. However, our law does not allow nude performances outside a theater in front of nonconsenting adults and children.”


Kent responded: “The courts have not held that all public nudity laws are constitutional. I'm not a stranger to anti-nudity laws and let me make clear that many of these laws that have been held constitutional have clear exemptions for First Amendment-protected activity such as artistic expression. This law is way overbroad and condemns all nudity.”


Albuquerque said the City Council told her last Friday to defend the ordinance. Federal District Court Judge Claudia Wilken is scheduled to hold a hearing in the case Oct. 23.