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Naked Violinist Appeals to the Ninth Circuit

By William Vogeler, Esq. | Last updated on

Matthew Mglej is not your ordinary street musician.

One fine day in Portland, Oregon, Mglej went to play his violin outside the federal courthouse. Before playing, however, he took off his clothes.

"He removed his suit and laid it out in a symbolic straw man metaphor to convey a message of transparency in government,'' his lawyer argued inside the courthouse. But as one judge said, nudity is transparent all by itself.

Political Protest

The judges at the U.S. Ninth Circuit Court of Appeals did not seem particularly impressed with the First Amendment message.

"Is it really your position if you're intending to communicate something, you may stand naked in the public square in Portland, even as children walk by?'' Circuit Judge Andrew D. Hurwitz asked.

Prosecutors had charged Mglej for violating the city's anti-nudity ordinance in 2014, then later dropped the case. Mglej followed up with his own civil rights suit, but a trial judge dismissed it.

Matthew Gordon, Mglej's lawyer, was having trouble making a First Amendment argument in the case. He said his client did not disrobe in a mindless act, but in political protest.

What Message?

"Your client didn't communicate a message at all," Judge N. Ray Smith interjected. "What message did he communicate?''

"He communicated a message about transparency,'' Gordon continued.

"Just because he took off his clothes?'' Smith asked.

Gordon said he had a violin, too, as a symbol of patriotism. But he might have done better if had wrapped himself in the flag.

The city's attorney said the police and city were protected from civil liability by a qualified immunity.

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