A nudist political protest in San Francisco. Source: Change.org.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Is a birthday suit like burning a draft card?  Last week, the Ninth Circuit Court of Appeals took on a First Amendment challenge to San Francisco’s public nudity ordinance, which prohibits an individual from exposing “his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, plaza, or public right-of-way . . . or in any transit vehicle, station, platform, or stop of any government operated transit system in the City and County of San Francisco.”  “Body freedom advocates” Oxane “Gypsy” Taub and George Davis brought an action challenging the City’s enforcement of the ordinance, alleging that it unconstitutionally prohibited expressive nudity at a political rally. The case came before the Ninth Circuit following dismissal by the United States District Court for the Northern District of California.

First, the Ninth Circuit noted that “[p]ublic nudity is not inherently expressive” but that it may constitute protected expressive conduct “in some circumstances,” and that “O’Brien is the applicable test . . . because the ordinance is aimed at the conduct itself, rather than at the message conveyed by that conduct.” Under O’Brien, government regulation is valid if: (1) the action falls “within the constitutional power of the Government”; (2) “furthers a substantial and important government interest”;  (3) “the governmental interest is unrelated to the suppression of free expression”; and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

The Ninth Circuit determined that San Francisco’s ordinance “satisfies each of the four O’Brien factors.”  First, the court held that restrictions on public nudity fall inherently within the City’s traditional police powers. Next, the court found that the ordinance furthers the City’s “important and substantial interests in protecting individuals who are unwillingly or unexpectedly exposed to public nudity, and preventing distractions, obstructions, and crowds that interfere with the safety and free flow of pedestrian and vehicular traffic.” Third, the ordinance is unrelated to expression, because it prohibits all public nudity regardless of the expressive nature of the conduct. Finally, the ordinance only prohibits exposure of “genitals, perineum, or anal region, during daily activities in the streets . . . which is essential to meet the City’s goals of preventing distraction and offense to citizens.” As such, the “incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

The Ninth Circuit similarly rejected Plaintiffs’ contention that the ordinance constitutes unlawful prior restraint, and that the denial of, or failure to respond to, Plaintiffs’ parade permit applications was unconstitutional.  Notably, the Plaintiffs were issued citations after the expressive conduct had occurred, and “the procedural requirements imposed on prior restraints do not apply to a content-neutral permits scheme regulating speech in a public forum.”  Additionally, although content neutral permit requirements which delegate overly broad discretion to a decisionmaker may violate the First Amendment, “here the permitting ordinance contains adequate standards to guide officials’ discretion,” and there is no evidence of a pattern of abuse by the decisionmaker.

Importantly, if future Plaintiffs are able to demonstrate a “pattern of abuse” evincing a favor for certain politically expressive nudity above others, the outcome may be different.

Taub v. City and Cnty. of San Francisco, ___ Fed. App’x ___, 2017 WL 2294501 (9th Cir. May 25, 2017).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.