Free-Swinging Expression: San Francisco's Nudists Are Not Special

The recent spate of steamy weather induced many locals to venture out of doors in a semi-clad state. Those taking things further, however, did so at their own legal peril. The luscious conditions of late would have been ideal for the city's self-proclaimed "urban nudists." But, in reaction to the "ad-hoc nudist colony" tooling daily around the Castro, Supervisor Scott Wiener last year pushed through a contentious nudity ban, inspiring many indignant naked protests, titillating news coverage, and gratuitous puns.

For those resentful of the mandated draping of their "genitals, perineum, or anal region," insult has been added to their injury by a constitutional scholar. San Francisco nudists' attempts to justify their right to disrobe weren't particularly special, says Ruthann Robson. And, she continues, San Francisco is not a particularly special place.

When a federal judge affirmed the city's right to regulate public nudity, "it was the opposite of groundbreaking, in a way," says Robson, a professor at the City University of New York School of Law and the author of the book Dressing Constitutionally. "San Francisco is like everyplace else. It is no different."

Emotional arguments about our city being a special place make for an interesting political debate — but a less interesting legal one. Judges, including San Francisco District Court Judge Edward Chen, have repeatedly ruled that the mere act of being nude is not a First Amendment issue. In fact, when it comes to interesting details, San Francisco can't hold a candle to New York. Robson points out that traditionally clothing-optional beaches on Fire Island are now losing that designation, as sand dunes that shielded the general public from those frolicking in the nude were blown away by Hurricane Sandy.

While gallivanting about nude isn't a free speech issue, doing so while dancing or protesting can be. This is the case put forward by San Francisco's urban nudists — and it may lead to tortured legal parsings of the meaning of "protest" or "dancing." Whether a nude protester or dancer must continue dancing and/or protesting indefinitely lest he or she instantly violate the nudity ordinance is a matter Robson feels a judge may yet be forced to rule upon.

The city's gyrating, political nudists, however, have some work to do before making that argument. First, they've got to lawyer up. Attorney Christina DiEduardo earlier this summer dropped their case. Calls to her were not returned, but plaintiff Gypsy Taub says this was due to the nudists coming up bare in the legal fees department.

Their wallets, perhaps, were in their other pants. Wherever those may be.

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