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Nudity and the Constitution

by Michael Kush

"The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with ... by every state or municipal institution...whether he likes it or not." --Justice Oliver Wendell Holmes, dissent in Lochner v. New York (1905) "One of the most important purposes to be served by the equal protection clause [of the Fourteenth Amendment] is to ensure that 'public sensibilities' grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government." ­ Judge Vito J. Titone, concurrence in People v. Santorelli & Schloss (1992)

Part One ­ A Test Case for Naturism?

On June 4, 2007, the U. S. Supreme Court unanimously reversed the decision of a lower federal court that had awarded $25,924.50 recompense for attorneys' costs to T. A. Wyner for winning a preliminary injunction against the State of Florida allowing a living nude peace sign to be staged on Valentine's Day, 2003, at MacArthur Beach State Park. Background In the 1980's Florida instituted a rule in the Florida Administrative Code [FAC 62D-2.014 (7)] establishing bathing suit standards for FL State parks. MacArthur Park had earlier been a traditional nude bathing site of many years' standing, and Wyner soon became one of the most prominent protesters against the new rule. In a 1995 Stipulation for Settlement (a voluntary though legally-binding negotiated agreement between two parties resolving a dispute at law, in lieu of formal adjudication) between Wyner and the Florida Department of Environmental Protection (DEP), under whose jurisdiction Florida State parks fall, the State recognized that "nudity coupled with expressive activity is generally protected by the First Amendment subject to reasonable restrictions on time, place and manner," and allowed Wyner to stage a nude play. But a term of the settlement was that Wyner would "arrange for placement of a bolt of cloth in a semi-circle around the area where the play [would] be performed." Over the years Wyner staged several nude plays protesting the anti-nudity rule, not always keeping the play within the screened area that park officials usually erected, but without interference. (As far as is known, Wyner never made an effort on her own to erect the screening mentioned in the settlement.) Nude Anti-War Protest In mid-January 2003, Wyner notified MacArthur Park manager Coulliette that she wished to create a live nude peace sign on Valentine's Day ­ effectively both a living art work, and an anti-war protest, and received a verbal okay. On February 6th, however, the DEP informed Wyner that the event could take place, but only if the FAC bathing suit rule were observed, effectively disavowing the agreement of 1995. (Though it may be argued that Wyner had disavowed the agreement earlier in the matter of screening ­ an issue complicated by the State's apparent acquiescence to the absence of screening, in not interfering with earlier nude displays.) Wyner sued Florida officials to obtain permanent "injunctive relief prohibiting defendants from interfering with future expressive activities that may include non-erotic displays of nude human bodies." Wyner also filed for emergency relief, and was heard in the Federal District Court on February 12th, one day before the scheduled protest. When the court asked the State why it seemed to be reversing its position now, Peter Scalco, chief of operations for Florida State Parks, replied that previous plays "talked about John D. MacArthur and the history of the park and this one seems to be about a peace demonstration." This and other testimony indicated to the court that the State's decision was improperly based on content. The court issued a preliminary injunction against the DEP, allowing the display, further noting that the "injunction does not preclude the posting of notices or signs advising Park visitors of the occurrence of the event nor the use of other measures used in the past." This rather vague statement was to prove troubling in subsequent court decisions.

The protest duly took place on Valentine's Day, with about 24 participants. There were perhaps an equal number of beachgoers within sight of the protest. Wyner set up the nude peace sign immediately outside the screened area that the park personnel had erected. As far as is known, there were no complaints about the nude display from any visitors present ­ a few of whom in fact spontaneously joined in the display, as was reported by the media. A grandmother visiting the beach with her grandchildren had perhaps the best comment, telling a reporter present that she would rather see naked bodies on the beach than dead ones on TV. Loss on Permanent Injunction In January 2004, the Federal District Court ruled against Wyner in the matter of the permanent injunction, noting that Wyner's disregard for the conditions it deemed inherent in the preliminary injunction, namely her not keeping the protest within a screened area, proved the DEP's original contention that adherence to the FAC bathing suit rule was necessary to "preserve park aesthetics" and "protect the experiences of the visiting public." Wyner maintained that the preliminary injunction allowed, but did not mandate screening, but the court ignored this argument, apparently based on Wyner's inclusion in her brief of the 1995 settlement, including the screening stipulation. However, the court did award Wyner recompense for the legal fees incurred in obtaining the preliminary injunction, arguing that the preliminary injunction was granted on concerns over the State's apparent non-content-neutral decision to forbid nudity in the Valentine's Day anti-war display, after previously allowing nudity in plays, while the permanent injunction was denied based on a judgment that the State had subsequently demonstrated that a universal application of the FAC rule was necessary ­ two distinct issues. Thus Wyner was a prevailing party, to the extent that she won the preliminary injunction. The DEP appealed the award of legal fees to the U. S. Court of Appeals, which affirmed the decision of the District Court. Supreme Court Ruling The DEP's appeal eventually found its way to the U. S. Supreme Court, which reversed the award to Wyner. In a 62-page brief, respondents claimed "the judicial order enjoining petitioners [the State] from interfering with respondents' [Wyner's] protest was based on what the district court recognized to be candid testimony by a state official that the State was applying the regulations regarding nudity differently to the nude anti-war protest than to the prior nude plays, undermining the State's argument that it was an appropriate manner restriction." In a 24-page brief, petitioners claimed that "the central justification for attorney's fees...is that `the civil rights defendant [in this case, the State], who is required to pay the attorney's fees, has violated federal law.' Martin v. Franklin Capital Corp." Under this theory, although the ruling for Wyner in the preliminary injunction was based on the potential of a violation, no violation occurred because the State accepted the ruling of the court and allowed the display to take place. However, Justice Ginsburg, in delivering the unanimous verdict of the court, noted "this case presents a sole question: Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a `prevailing party'?" [Emphasis added.] Contrary to Wyner's contention and the judgment of the lower courts, it judged that the preliminary and permanent injunctions were not separable, and addressed essentially the same issue, namely whether the State's refusal to waive the FAC bathing suit rule was reasonable. It judged Wyner was not a prevailing party, because she lost on the permanent injunction, and was therefore not entitled to compensation. Commentary A short article cannot include an analysis of the pages of case law citations offered by petitioners and respondents in their briefs. However, it may be noted that at every stage of the legal proceedings, all judges involved assumed without discussion that the State had a legitimate interest in controlling public nudity, and that an open display of nudity without a mechanism to shield or warn visitors was undesirable. A moot point is whether Wyner would have won the permanent injunction in the District Court, if she had limited the display to within the screened area. What is clear is that this would necessarily have changed much of the justification for the

decision to deny the permanent injunction, based as it ultimately was on Wyner "proving" the State's contention that the FAC bathing suit rule was necessary to "protect the experiences of the visiting public", as the District Court stated. However, since the issue involved nudity coupled with artistic or political expression, such a victory, though insuring Wyner's right to present plays or art works incorporating nudity, would not automatically have insured an acceptance of nude sunbathing or skinny-dipping. In that sense this case was ultimately never an issue of "naturist rights".

Part Two ­ A Naturist Brief

Preliminary Comments A brief for naturism would most likely involve invoking the equal protection clause of the Fourteenth Amendment, although some have also suggested an argument based on privacy ­ meaning in this sense the protection from unreasonable interference by government. However, it is unlikely that one could obtain any ruling favorable to public non-erotic nudity without some time and place restrictions to satisfy government. The latter statement may annoy some extreme "libertarian naturists," who are often heard to claim that there is no right not to be offended in the U. S. Constitution. While this may be true in a narrow sense, it is generally recognized that governments can legitimately regulate conduct to some extent. You can't drink and drive, you can't practice on your drums on your porch at 2 AM, and you probably never will be able to shop at the supermarket in the nude. But you can drink, and not drive, or drive, and not drink. You can practice the drums at noon. And naturists must hope we can convince government that we should be allowed some areas on public land where nude swimming and sunbathing may occur without harassment. In our system, laws ­ both statutes and ordinances passed by representative legislators, and administrative rules enacted by executive authorities ­ are often compromises between competing interests. Ideally, they are crafted to provide sufficient protection for the general public and recognized minority interests, while being minimally intrusive on other minority interests. I am not naively suggesting all parties are always equally respected. Backpackers and environmentalists ­ two special interest, or minority groups ­ may feel that the snowmobile lobby has probably gotten more access to federal parks than reasonable for snowmobilers ­ another minority group. Snowmobiles are quite polluting, as well as being noisy and disturbing to wildlife. Their roaring past interferes with the interests of bird-watchers (and birds!) Yet snowmobilers are allowed some restricted access to public land. If we were to hold a plebiscite on the issue, perhaps the public would vote to ban snowmobiles altogether from federal parks ­ or perhaps not. The point is, it need not be an either/or proposition. As James Madison stated in a letter to Thomas Jefferson, a concern was that the Constitution prevent "the tyranny of the majority over the minority." But we cannot deny that nudity is offensive to some, nor can we blithely ignore the interests or concerns of that group when seeking an acceptance, however limited, of naturist activities. The Brief I would envision as preliminary a written request to a government entity for a designated naturist beach. One would expect a denial, probably with the citation of a statute, ordinance or code. Some shopping would be required to find the best government entity to which to make the request, based on governing law and the probability of the hearing being held in a relatively unbiased court ­ although one should anticipate the likelihood of loss at a lower court level, and the need for an appeal as likely. Prior to Wyner's loss on the permanent injunction, I might have suggested a request to the Florida DEP for a naturist beach at either MacArthur Park or Honeymoon Island, both former traditional nude use areas that are now state parks. This would be denied with reference to the FAC bathing suit code. This might still be a possibility, since the naturist suit would be based on the Fourteenth rather than the First Amendment, although the courts might choose to ignore the distinction and deny a hearing. The advantage of a win here would be the many Florida state parks that might then be opened to designated naturist areas. If the action is taken against a municipality or county, a win there might still be met with refusals by other municipalities and counties to establish naturist beaches, requiring further suits. The naturist brief in such a suit:

...would seek to establish a clear distinction between non-erotic nudity and lewd behavior, ...would seek to prove that there is no real or substantial interest of the government regarding public health, safety or welfare that is served by an absolute ban on non-erotic public nudity, ...would cite an overwhelming body of medical, psychological and religious expert opinion in support of this contention, and allow for producing substantial expert testimony in court, ...would include an exhaustive analysis of police complaints from existing naturist beaches in the United States and other countries, demonstrating that naturist beaches do not lead to an increase in criminal activity over the baseline that occurs at other public recreation sites and in society in general, and provide for substantial expert testimony in court from government administrators associated with existing naturist beaches further substantiating this contention, ...would claim therefore that such absolute nudity bans were unnecessarily harmful to the freedom or pursuit of happiness of a class of citizens, namely naturists, ...would claim therefore that the provision of designated naturist recreation areas, marked by signs and some level of screening, would minimally satisfy the interests of both government (including citizens who prefer not to view nudity), and naturists, ...would further demonstrate that setting aside such naturist areas could be done with minimal cost and without undue burden to government, ...would therefore seek to have judged unconstitutional any code or ordinance forbidding public nudity absolutely, ...would therefore seek a judgment enjoining the government entity from refusing to set aside designated recreation areas on public land for naturists, if such were requested by citizens, and ...would further seek a judgment enjoining the government entity from interfering with naturists at remote non-designated locations on public or private lands, provided that such nude use did not take place within a certain distance from others. I'm not sure about the wisdom of including the last item regarding non-designated areas, because the exact restrictions may not be easy to formulate to satisfy both government and naturists. This would I think be a much harder decision for the courts than officially designated areas, but might be included as a sacrificial request, if including it would not jeopardize the case for designated areas. In any event, a victory on designated areas would give naturists the opportunity to present naturism to a wider public, eventually winning acceptance for discrete naturist use of non-designated areas. The model of such a brief is the famous "Brandeis Brief" of more than 100 pages that was submitted by future Supreme Court Justice Louis Brandeis in Muller v. Oregon (1908), inducing the U. S. Supreme Court to reverse from a position it held just three years earlier in the similar Lochner v. New York. Legal scholars will be quick to point out that Muller upheld the right of states to limit freedom (in this case, of contract) in favor of a legitimate state interest (in this case, establishing a 60-hour maximum work week for women). The relevant point is that Brandeis assembled such an overwhelming body of evidence in his brief that the Supreme Court could no longer maintain that the right to enter freely into contracts trumped the State's interest in preserving women's health and welfare, and the court thereby limited a right that had earlier been considered sacrosanct and almost absolute. (Feminists would no doubt consider some of Brandeis' arguments sexist, but he necessarily for his day used some of the "weaker sex" and "woman's place" arguments that he probably knew would resonate with the court. Framing arguments to the prejudices of the court may be a necessary expedient. Of course, from today's vantage, it's possible to argue that "sweat or starve" so-called "contracts" for an employee to work 80 or 90 hours a week may not even qualify as legal contracts entered into freely and without duress.) In our case the "right" we're trying to overturn is government's "right" to ban public nudity absolutely. A naturist "Brandeis Brief" would need to demonstrate by overwhelming evidence that blanket bans on non-erotic nudity serve no legitimate government interest, or at least that any concerns are adequately addressed by designation, signage, and perhaps some level of screening, and therefore that such bans unnecessarily limit the freedom of a class of citizens. That's not a task to be accomplished without massive preparation as to legal precedent, other evidence, and argument.

This is a skeleton outline, and I am not suggesting such a case would be easy to win; it would likely incur costs approaching or exceeding a million dollars to pursue successfully, including not only attorneys' fees but a substantial investment in research and in stipends, travel and lodging expenses for the many expert witnesses that would be required to adequately present the case ­ and most of these witnesses should not be naturists, but outsiders that may be viewed as independent. There seems to me to be little point to attempting to pursue this issue on a de minimis basis without competent counsel and the research and expert testimony. Still, a win in a lower court would without doubt be appealed by respondents, and petitioners should also anticipate an initial loss requiring an appeal on their part. Therefore funds adequate to pursue the matter upward through the courts is a prerequisite, and for this reason the million dollar figure is probably not at all an exaggeration. It is to be expected that respondents will produce a large body of expert witnesses to counter petitioners' expert testimony regarding the benign nature of non-erotic public nudity. Opposition should also be expected along federalist, or states' rights lines, as well as using "community standards" arguments. The respondents should also be expected to produce case law against naturists being treated as a class of citizens under the Fourteenth Amendment; convincing the court that they should be so treated is perhaps the most difficult task for petitioners' counsel. One is ultimately at the mercy of the judges, and it's essentially a matter of government paternalism versus libertarian principles. Justice Holmes, a paternalist and pessimist regarding human nature, perhaps most famous for his "Three generations of imbeciles are enough" comment in upholding Virginia's compulsory sterilization law for the mentallychallenged (to use today's terminology) in Buck v. Bell (1927), might not agree with our position ­ unless convinced based on his own prejudices and convictions that there was indeed no harm likely to follow from our request. (Holmes himself candidly observed that judges often apply precedent selectively to support their views, rather than objectively and analytically to formulate decisions.) Some hope remains in the opinion of Judge Titone, of New York State's highest court, ruling that it was discriminatory for the State to insist that women cover their breasts when men were permitted to uncover theirs. But again, that decision hinged on the court's recognizing women as a group protected by the Fourteenth Amendment to the U. S. Constitution. Naturists are essentially in the same position as gays were in 5 years ago before Lawrence v. Texas struck down intrusive sodomy laws, that blacks were in 50 years ago before Brown v. Board of Education savaged the "separate but equal" fantasy of Plessy v. Ferguson (1896), and that women were in 90 years ago before the Nineteenth Amendment gave them the vote. Though marking milestones, these are of course arbitrary dates, as these groups have yet not received a full acknowledgement of the validity of their interests, rights, or concerns from the courts or the public. Similarly, naturists cannot reasonably expect instant recognition, or the gratification of all their desires through one legal action. To think otherwise flies in the face of history. And while it can reasonably be argued that discrimination by race or gender is more pernicious ­ one can't easily conceal either of them ­ yet the increasing recognition of sexual orientation as a valid category must give naturists some hope for the future recognition of their interests. Yet the make-up of the Supreme Court seems to have become more paternalistic recently, and only one Justice away from a paternalistic majority ­ the Lawrence decision in 2003 was 6 to 3, with Scalia, Rehnquist and Thomas dissenting, and today one would reasonably expect Scalia, Thomas, Roberts and Alito to dissent on such an issue ­ a group which, at the risk of raising some ire, I like to call the Jesuit block, from their often convoluted twistings of logic and the law, at least in my view. (In fairness, this incorporates some pre-judgment on my part of the newer Justices, Roberts and Alito. Justice Souter demonstrated that pre-judgments are not always reliable; life tenure on the court can be liberating, and one must applaud the founding fathers for their foresight in this regard.) It should be noted that the basic tactic I've outlined was attempted twice over the last 30 years by the Beachfront USA organization in California, faltering both times largely because the organization ran out of money to pursue the case through the court system. What is needed here is for some naturist organization to take the lead, obtain some seed money and a core of legal and other advisors, and then develop a detailed outline of the action. The next step would be to enlist the financial support of naturist organizations and individual naturists throughout the country in what would be a landmark concerted effort to obtain a decisive win; if this doesn't happen, any attempt is probably doomed to failure.

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