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San Francisco Ban on Public Nudity Ruled Constitutional by Ninth Circuit

By George Khoury, Esq. | Last updated on

Yesterday, the Ninth Circuit Court of Appeals rejected a challenge to San Francisco's controversial law banning public nudity. The two plaintiffs seeking to overturn the law, Oxane "Gypsy" Taub, and George Davis, both faced prosecution under the law after donning nothing at all at the city's eccentric Bay to Breakers cross-city marathon, and at a local street fair in the city's foregone hippy epicenter, the Haight-Ashbury neighborhood.

Among San Francisco's many claims to fame, the casual attitude toward nudity is one that has fallen out of fashion, at least legally. In 2012, the city passed an ordinance requiring any person engaging in a public display of nudity to have obtained a parade permit first. In what is sure to be an upset to nudists everywhere, the ban has been ruled constitutional, and as such, isn't going anywhere, for the time being.

Body Language and the Law

When it comes to public nudity, the court did recognize that there is some amount of free speech, or better yet, free expression, involved. However, the court explained that the First Amendment does not provide absolute protection for all forms of expression. It reasoned that the city had a compelling enough reason to institute the ban, and that the ban does not prevent the expression of the idea of nudity, but merely the conduct used to express the idea. Content neutral restrictions are speech are frequently upheld as constitutional. Additionally, the court found that the permit requirements were not overly broad, and the challenge to the permitting process was also rejected.

Notably, unlike laws against indecent exposure, the San Francisco ban does not require any ill-motive on the part of a naked individual. While the court did not cite the popular "My eyes are burning! Why can't I look away!" or the "Ewe gross!" arguments against public nudity, the end result is sure to please the timid tourists and city residents that prefer at least one thin layer of gabardine between a person's nether regions and the rest of the world.

Sadly, the result was announced the week after a permitted nudist parade through the Haight-Ashbury and the Castro Districts of San Francisco, where plaintiff Gypsy Taub spoke out against the ban. Though the parade was meant to celebrate the 50th Anniversary of the Summer of Love, participants wore hats, smiles, and carried protest signs decrying the ban.

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