First Amendment Does Not Protect Public Nudity, Says 9th Circuit

By Mira Soni

Two years ago, “body freedom activists” Oxane “Gypsy” Taub and George Davis brought two lawsuits against the city of San Francisco in which they argued that the city’s ban on public nudity violated their First Amendment right to free speech. The first lawsuit was dismissed, but the city settled the second lawsuit for $20,000 in June of 2015.

Taub and Davis appealed the dismissal of their claims, and the U.S. Court of Appeals for the 9th Circuit announced its decision last Thursday. The court held that San Francisco’s public nudity ban was a “valid, content-neutral regulation” as applied in the 1968 Supreme Court case, United States v. O’Brien. In O’Brien, the court ruled that the federal law criminalizing destruction of draft cards was not unconstitutional because it a) was within the government’s constitutional power, b) furthered a substantial government interest, c) was not related to suppressing free expression, and d) did not restrict First Amendment freedoms more than was necessary to promote the government’s interest.

The 9th Circuit evaluated Taub’s appeal on these four factors, and found that the ban was not in violation of the plaintiff’s First Amendment rights.

The challenged ordinance satisfies each of the four O’Brien factors…First, restricting public nudity falls within San Francisco’s traditional police powers.

…Second, the ordinance furthers San Francisco’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, San Francisco’s interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive.

…Fourth, “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

…The ordinance prohibits only exposure of one’s “genitals, perineum, or anal region,” during daily activities in the streets of 4 San Francisco, S.F., Cal., Police Code art. 2, § 154(b)–(c), which is essential to meet the City’s goals of preventing distraction and offense to citizens not expecting to be confronted with such private parts of other persons’ anatomy.

The ordinance, which has been in place since February 2013, will not be coming down any time soon.

Additional sources:

No First Amendment right to political public nudity — even in San Francisco (The Volokh Conspiracy)

City Settles Nudists’ Lawsuit (The Bay Area Reporter)




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