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San Francisco versus Naturists

by Fred E. Foldvary, Senior Editor, 26 November 2012

The Board of Supervisors of the City and County of San Francisco, California, has voted to prohibit public nudity in San Francisco other than in some city-permitted fairs and the annual Bay to Breakers race. As of the date above, the measure passed the first vote and will be subject to a second vote on December 4, and then, if it passes, approval by the mayor. Most likely the bill will pass.

The California criminal code 314 prohibits indecent exposure, which means showing particular body parts while behaving lewdly or sexually. Simply appearing in public without clothing is not indecent exposure.

So in California, the state government has left the prohibition of mere nudity to the cities and counties. Most California cities have enacted such laws, but San Francisco only made nudity illegal in its city parks and inside government buildings. Every May, for example, the Bay to Breakers race, where thousands run or walk from the Bay to the Ocean, has included nude participants. This nakedness has been well tolerated by the runners, and to some visitors it is part of the fun of the event, in which many dress in comical costumes.

The nudity issue arose when a few men began to sit naked in the Jane Warner square, a plaza with seats and tables located in the Castro area, where there are many homosexual (gay and lesbian) residents. This location was thought to be tolerant of nudism. Some of the nudes also strolled down the streets.

When it became more known that one could be naked in the streets of San Francisco, exhibitionists exploited the opportunity by standing at the busy intersection next to the square where the walkers and car riders could not avoid seeing them. Also a few local residents complained to their representative on the County Board of Supervisors that they were offended by the nudity as they walked by in their way to work and shopping, especially when they were passing by with their children.

So it came to pass that the representative of that district, Scott Weiner, introduced the bill to ban nudity in San Francisco. He says he believes in freedom, but that public nudity is not free expression. Nudists have filed a federal lawsuit based on the claim that the law violates their First Amendment right to freedom of speech. The law will fine first-time offenders a fine of $100, $200 for a second offense within 12 months, and thereafter$500 fine or a misdemeanor charge which could include jail time.

Most probably the federal lawsuit will fail, because similar efforts to override anti-nudity laws with free-speech arguments have not been successful. Judges have responded that nudity is not speech. If you just take your clothes off, what is your body saying?

The choice of clothes does involve expression, but it is not necessarily speech. The better U.S. constitutional argument would be the Ninth Amendment, which states that people have rights even if they are not specified in the Constitution. There is a similar provision in the California State Constitution, in article 1 section 24. These provisions recognize that people have pre-existing rights by common law and natural law.

Natural moral law, or the universal ethic, prescribes the proper law for government. The basic rule for law is that an act is evil if, and only if, it coercively harms others. This harm rule has been widely recognized as the foundation for proper law by philosophers such as John Locke as well as by legal scholars.

The key is the meaning of ďharm.Ē A mere offense is an act that others find displeasing only because of their beliefs and values, such as being offended by anotherís speech or religious practice. A harm involves an invasion, an unwanted entering into anotherís domain, such as sticking a knife into anotherís body, or stealing from another.

Free speech is meaningless if the law prohibits statements that others donít like. Hence, acts that are offensive but not harmful are neutral by natural moral law. A truly free society may only prohibit and penalize acts that coercively harm others.

Public nudity does not harm others, and therefore a law banning nudity does violate freedom. Moreover, psychological studies have found that mere nudity does not harm children. Also, proper legal arguments have to generalize, so suppose that some community had a majority of white racists who are offended by the presence of black people in the street. Would that justify a ban on blacks in that neighborhood? Or, would a ban on religious clothing be justified if some or even most people are offended? If not, how is the general presence or absence of clothing different?

San Francisco could compromise by warning exhibitionists that they could be charged with code 314, or by establishing some clothing-optional zones, acknowledging the politics of cultural views, as it is no longer generally acceptable to the majority to advocate racist laws, but it is acceptable to express opposition to nudity in public locations.

It would be interesting to have a Ninth Amendment lawsuit against laws prohibiting public nudity, since that is the quintessential victimless crime law. If judges upheld the ban, they would in effect have government declaring that the natural-law harm-only rule does not exist, and that declaration would have shattering legal and social consequences.

-- Fred Foldvary

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Copyright 2010 by Fred E. Foldvary. All rights reserved. No part of this material may be reproduced or transmitted in any form or by any means, electronic or mechanical, which includes but is not limited to facsimile transmission, photocopying, recording, rekeying, or using any information storage or retrieval system, without giving full credit to Fred Foldvary and The Progress Report.

Also see:

Not Enough Earth For Everybody?
http://www.progress.org/2012/greatape.htm

As Recorded By a Nurse
http://www.progress.org/2012/regrets.htm

Half the fun is how you get there Ö
http://www.progress.org/2012/rogeclay.htm

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