Petrelis Files

Criminal Lawyer: 
No New SF Law Needed to Ban Nudity

The land use committee of the Board of Supervisors meets on Monday at 10 AM to consider the second legislative effort by Scott Wiener to solve the nudity controversies in District 8, and I imagine it will be like their January hearing on banning sleeping at Harvey Milk and Jane Warner Plazas.

Wiener, who is not a member of the committee, will be granted courtesy privileges to run the show. Even though there is no law requiring this, he will mandate that everyone fill out speaker cards then he alone will choose the speaking order. That means his donors and supporters, who will want to say their piece and quickly split, will be bunched upfront and he'll keep his adversaries spread out toward the end of the list.

First come, first to speak. Line 'em up along the wall of the hearing room, just as at a full BOS meeting. Catch the hearing live (and archived later) at SFGovTV.

Since I cannot and will not participate in this charade of democracy, when it's really another campaign event for Wiener's mayoral aspirations, and I expect the bill to be voted out of committee, I'm skipping Monday's hearing. I'll be attending Wiener's town hall at the LGBT community center on Wednesday starting at 6 PM, though.

Over the weekend, nudist activist Mitch Hightower made me aware of a very informative and legally detailed, but easy enough for laypersons to understand, essay rebutting a few of Wiener's concerns written by Christina DiEdoardo, pictured, a local defense attorney. She clearly has a different opinion about the constitutionality of the legislation than Wiener's friends and (nominally and faint) colleagues at his former employer, the City Attorney's office.

Sure do hope DiEdoardo uses her two minutes of public comment tomorrow and broaches one or two of these points. Regardless of her attendance, this lawyer's voice of counter-argument should be an integral to the BOS debate. From DiEdoardo's web site, emphases in the original:

While other cities fret about underfunded pension liabilities, here in San Francisco the latest keruffle is over the supposed “problem” of nudists in public spaces . . .

With regard to the first question, the general trend by courts in California seems to be not to grant First Amendment protection to public or private nudity unless the nudity is accompanied by or part of ” ‘some mode of expression which itself is entitled to first amendment protection.’ ”  . . .

It may, however, explain why Supervisor Weiner says wants to exempt events like the Folsom Street Fair and presumably, though he didn’t say so explicitly, the Dyke March and the Trans March from the proposed ordinance. Simply put, he’s not doing it out of kindness–those events, particularly the Dyke and Trans marches, are clearly political speech subject to First Amendment protections.

With regard to the second question, Penal Code Section 314(1) provides “Every person who willfully and lewdly…1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby…is guilty of a misdemeanor” (Emphasis added).

Of course, this begs the question “What does ‘willfully and lewdly’ mean for the purpose of the statute? Fortunately, the California Supreme Court settled this question over 40 years ago when it decided In re Smith . . .

In Smith the Court found a man who was arrested for indecent exposure under PC 314(1) was entitled to habeas corpus relief because “The necessary proof of sexual motivation was not and could not have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual ‘activity.’” (J. Mosk). Instead, the People would have to establish something more, such as “additional conduct intentionally directing attention to [the defendant's] genitals for sexual purposes” if it wanted to convict Mr. Smith of violating PC 314(1) . . .

Going back to the cockring “problem”, since the purpose of a cockring is to draw attention to the wearer’s genitals, wearing one in public while nude would appear to make one subject to arrest for violating PC 314(1) based on the plain language of the Smith case. Thus, existing state law is more than sufficient to deter the supposed problem to be remedied and the ordinance is unecessary.

What about the final question–whether or not the State has preempted this area of regulation? Unfortunately, here things get murky. While a 1975 case out of the Second District upheld a Los Angeles ordinance banning public nudity in parks (on the somewhat tortured ground that the ordinance did not purport to ban all nudity across the City’s public spaces, but only regulate it as a time/place/manner restriction) and held that the L.A. ordinance was not preempted by PC 314(1), it is unclear how modern courts would treat a similar issue today . . .

The bottom line is that–as with so many other public policy issues–what’s needed is not additional laws, but enforcement of existing laws. That would solve the “problem” of the nudists with cockrings, to the extent it’s not anecdoctal and actually exists.

With regard to the wider issue of those who object to nude people in public, there’s an easy remedy which costs no public money, requires no court time and consumes no scarce jail space: look away.