Nude protester takes case to Supreme Court

Thursday, May 13, 1999

A nuclear physicist arrested for protesting in the nude on a Brevard County, Fla., beach has taken his case to the U.S. Supreme Court.

Marvin Frandsen, a nuclear physicist who enjoys nude sunbathing, was arrested in September 1995 after his nude protest of the county's new public nudity law at Playalinda Beach.

According to his attorney, Mark Tietig, Frandsen was engaged in a “performance-dramatization demonstration” as the prophet Isaiah, whom God ordered to preach in the nude to the Israelites.

“The message of nudity was important in the Bible,” Tietig said, “because it represented the stripping-away of hypocrisy.”

Frandsen and his attorney claimed the arrest and subsequent conviction should be dismissed because the county ordinance violated his First Amendment free-expression rights and also his right to free exercise of religion.

After pleading no contest to the charges in 1995, Frandsen appealed his case to a Brevard County court, which affirmed the conviction in July 1997. After the 5th District Court of Appeals refused to hear his case in January 1999, his only avenue of relief was an appeal to the U.S. Supreme Court. (The Florida Supreme Court, the state's highest court, did not have jurisdiction in the case.)

“The ordinance restricts expressive conduct and contains some overbroad and vague language,” Tietig said.

The ordinance generally prohibits people from appearing nude in a public place, including sunbathing in the nude. However, the law contains exemptions for persons appearing nude as “part of a bona-fide live communication, demonstration or performance.”

“A problem with the ordinance is that it leaves too much discretion to government officials to determine what is a 'bona-fide communication,'” Tietig says.

Steve Mason, an Orlando attorney who specializes in First Amendment law, says the exemption for “bona-fide communications” opens the door for government discrimination. “This exemption gives government a license to discriminate based on the content or viewpoint of the message,” he said. “The term is vague and overbroad.

“The exemption also allows government to discriminate against the content of expression based on where it occurs,” Mason said. “Under this law, the government can punish someone for engaging in a political protest nude on the beach, but then say nudity in another venue is acceptable.”