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Tuesday, January 29, 2013

S.F. Public Nudity Ban Upheld -- Lawyer Promises Friday Nude-In

Posted By on Tue, Jan 29, 2013 at 3:25 PM

click to enlarge They're bummed!
  • They're bummed!

Update 4:04 p.m.: Christina DiEdoardo, the attorney representing a quartet of nudists, tells us that her clients are disappointed by the judge's decision. But that won't stop nudists from dropping trou come Friday -- the day that public nudity will be officially illegal.

Expect to see plenty of naked men and women around City Hall that afternoon, baiting cops as they rally to win back their right to be nude. Should those folks get cited for exercising their "free speech," then DiEdoardo believes they'll have a new case to file, one based on discrimination.

"The [judge's] order gave an implicit invitation to refile the case if there are instances of discrimination," she said. "There will be another demonstration Friday and my clients will be out there as usual, and if they are in fact cited for engaging in fair political speech that would appear to us [to be discrimination.]

Original story 3:25 p.m.: Public nudists have lost yet another battle to remain unclothed. Today, a U.S. District Court judge dismissed the group's challenge to the city's newly passed ban on public nudity, ruling that nudity bans are perfectly legal.

See Also: Here's How S.F. Nudists Would Dress, If They Did Wear Clothes

Judge Edward Chen sided with the city of San Francisco, which argued that the courts, including the U.S. Supreme Court, have already repeatedly upheld the constitutionality of local public nudity bans, adding that "such bans are a valid and longstanding feature of municipal codes throughout the nation."

According to the ruling:

Plaintiffs' assertion that Penal Code § 314 disables local governments such as the City and County of San Francisco from enacting a law banning nudity (even if not lewd) is without merit. Plaintiffs ... essentially argue that the Ordinance is per se unconstitutional -- that the Ordinance is unconstitutionality in all contexts where public nudity is banned thereby. Their complaint does not allege any specific circumstance in which the ban has been applied which raises specific and particular constitutional issues. In fact, it is clear that the Ordinance has not actually been applied against any individual because it is not due to go into effect until February 1, 2013. Nor are there any allegations in the complaint, nor is there otherwise any evidence, that the City has threatened to apply the Ordinance to any person in a particular circumstance.

We put in a call to the nudists' No. 1 advocate, their attorney, Christina DiEdoardo. No word back yet; however, in a statement on her website, she did indicate what the next step might be. "An emergency appeal to the Ninth Circuit is being considered to seek a stay of the ordinance going into effect on Feb. 1," she said.

The judge also determined that being nude is not an expression protected by the First Amendment. In addition, Chen rejected plaintiffs' arguments that the city's nudity exemptions for permitted events, including Bay to Breakers and the Folsom Street Fair, violated constitutional Equal Protection guarantees; the judge claimed nudists failed to show that the exceptions "lacked a rational basis."

"Expressive conduct exists where "an intent to convey a particularized message was present, and [ ] the likelihood was great that the message would be understood by those who viewed it," the ruling states.

"The plaintiffs took an unlikely position in their case that if they couldn't be naked everywhere, no one could be naked anywhere. We believed their legal challenge to be baseless, and we're grateful that the court agreed," said City Attorney Dennis Herrera.

Now, come Friday, public nudists will be required to join the rest of society and get dressed before they leave the house.

Public Nudity Ban Upheld


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About The Author

Erin Sherbert

Erin Sherbert

Bio:
Erin Sherbert has been Online News Editor for SF Weekly since 2010. She's a Texas native and has a closet full of cowboy boots to prove it.

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