By Josh Richman
Tuesday, January 29th, 2013 at 4:20 pm in San Francisco politics.
A federal judge today dismissed a lawsuit challenging San Francisco’s new ordinance banning most public nudity, clearing the way for it to take effect this Friday.
District Judge Edward Chen’s order sided with the city’s arguments that the constitutionality of local restrictions on public nudity has been repeatedly upheld in the courts, including the U.S. Supreme Court, and that such bans are a valid and longstanding feature of municipal codes throughout the nation.
“Even though we’re not surprised by Judge Chen’s ruling, we’re gratified by an outcome that affirms established case law and preserves reasonable exceptions for permitted events,” City Attorney Dennis Herrera said in a news release.
“Ironically, the nudism advocates’ equal protection claim raised legal questions about the validity of exceptions that the Board and Mayor approved, which allow nudity at events like Bay to Breakers and the Folsom Street Fair,” Herrera said. “The plaintiffs took an unlikely position in their case that if they couldn’t be naked everywhere, no one could be naked anywhere. We believed their legal challenge to be baseless, and we’re grateful that the court agreed.”
Chen ruled that the nudism advocates’ First Amendment-based challenge lacked merit because “public nudity alone is not expression protected by the First Amendment,” and because the ordinance was “not substantially overbroad.” He also rejected their arguments that exemptions for such permitted events such as Bay to Breakers and the Folsom Street Fair violated constitutional Equal Protection guarantees, holding that plaintiffs failed to demonstrate that the exceptions lacked a rational basis.
Chen dismissed this challenge without leave to amend, but left the door open for nudism advocates to amend their pleading later with “as-applied” claims – meaning, after they’re arrested – provided they can do so.
The San Francisco Board of Supervisors late last year adopted an ordinance barring people from baring their genitals on public streets, sidewalks, and most other public rights-of-way as well as on transit vehicles and in transit stations. Exceptions were carved out for permitted events and festivals, and for children under the age of five.