Federal Judge to Review the Nudity Ban

Though the nudity ban isn’t officially a law yet, word comes this morning that U.S. District Judge Edward M. Chen, with the United States District Court for the Northern District of California, has scheduled a hearing for January 17, 2013 to hear arguments if the new, San Francisco law sponsored by Sup. Scott Weiner violates the rights of our embattled, urban nudists.

Since the onset of the debate nudists have maintained that the ban violates their First Amendment right of self-expression and is making the City look more like Topeka and less like the beacon of open minded, forward thinking community that most in the world think San Francisco to be.

As we posted earlier during the course of this winding debate that’s polarizing the Castro and the community, San Francisco-based lawyer, Christina A. DiEdoardo,  filed the class action lawsuit on behalf of four nudists claiming the proposed law violates their freedom of expression and the equal protection clause of the U.S. Constitution. Plaintiff in the lawsuit,  Mitch Hightower, a gay man who organizes a yearly nude-in at Jane Warner Plaza in the Castro and owner/operator of an online porn site based on public nudity; Oxane “Gypsy” Taub, nudist television host from Berkeley; George Davis, former ‘nude’ SF mayoral candidate; and Russell Mills, web master of a pro nudity site. Ms. DiEdoardo has repeatedly been quoted by reporters, that her clients “are entitled” under the First Amendment to be nude in public as they are engaging in “expressive speech.” The city cannot ban such speech, she said, merely because others are offended by seeing people nude.

The Board of Supervisors are expected to revisit the vote on the ban again in December, and if it passes, Mayor Ed Lee has promised to sign it into law. City Attorney Dennis Herrera, has branded the nudists’ lawsuit baseless. The US Supreme court has reviewed two such cases previously and found that such bans do not violate individual rights to expression and local municipalities have the right to legislate against it. Both those cases however dealt with strip club nudity and the use of pasties vs. no pasties. Some would argue this case comes from a different perspective and is worth review.

DiEdoardo has also pointed out that there is still time for a compromise between the City and the plaintiffs. Compromise could be reached if the City worked with the nudist to find a better solution than another law that divides nudity into acceptable/unacceptable categories and wastes precious City resources of time and money battling the issue out in court. The idea of this happening seems highly unlikely at this point considering how rancorous the debate has become within City Hall, the full court press of the Merchants of Upper Market/Castro (MUMC) and some very influential and outspoken citizen’s from the district who’ve had the luxury of Sup. Weiner’s full attention.

Waiyde Palmer

Waiyde Palmer loves San Francisco, social activism and punk rock(ers). His work has appeared in Handbook Magazine. SF Bay Times, The Advocate, Diseased Pariah News and American Music Press . He also has an extensive and repeatedly redacted FBI file.

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18 Responses

  1. Christian Figueroa says:

    Anyone who is shocked by public nudity should move elsewhere. It's just a human body and they are being hysterical. These people are only as offended as they allow themselves to be, and likely threw tantrums as children also. There are so many more pressing problems in this city; lack of restrooms for the homeless and tourists, too few benches to encourage pedestrians and shoppers, not enough public transportation, too many potholes, astronomical rents while many properties sit empty… the list is endless, I don't care if someone wants to walk around with their tits or dick out. Grow up or get out.

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    • Joe says:

      I believe it’s the 50+ year old man-children who HAVE to have their own way. Waving their dicks in public in a pathetic cry for someone (Mommy) to pay them attention. Perhaps they should grow up, put some clothes on or get out.

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  2. Joe says:

    This issue isn't about being open minded or forward thinking. It's about White Male Entitlement. "I am White Middle Aged and can do whatever I want, up to and including wagging my penis in public" I wonder where the Nudist of Color are? Why have we not heard from them? Do they exists? Not having guys jerk their cocks in a public space doesn't make us Kansas. It makes us open to EVERYONE. BTW, Freedom of Speech doesn't allow you to yell FIRE in a crowded theater. You shouldn't be able to wave your junk in public either.

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    • Christian Figueroa says:

      You sound like those fools in NH that were shocked that black people voted in their town. Just because you don’t personally know black people does not mean they do not exist.

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      • Joe says:

        Christian, I know black people and a few of the nude guys. Just don't agree with them. So who is the fool? Looks like you should move back to Fresno or wherever open minded fools come to SF from. Me? Born at Children's Hospital on California.

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  3. IT’S FREEDOM OF SPEECH… NOT STUPIDITY! They should of arrested anybody within City Limits for exposing themselves in public. It’s time for the S.F. Board of Supervisors to spend their time on important issues of the masses and not a bunch of jerks!

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  4. Ramón says:

    Scott Wiener, the queen without a country, will issue a followup edict to his nudity ban.

    The clothing mandate for residents of the Castro will be as follows:

    http://www.flickr.com/photos/78705066@N00/

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    • Waiyde says:

      HA! Good one Ramon!

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    • Joe says:

      It's disgusting to make comments like this about a Jewish Man. Worst that you show support for it Walyde. Scott represents everyone, and I think he does a excellent job.

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      • Waiyde says:

        Hahahaha! Joe your knee jerks so hard I'm surprised it doesn't bang the table you're sitting at. Ramon's comment is a clever take on the issue of naked/not naked and extremist reaction to either side of the debate. How is that offensive to someone who follows the faith of Abraham or Mr. Weiner personally? How are your comments not offensive to women who follow the conservative letter of Allah's law? Scott can't possibly represent 'everyone' as the debate over nudity, benches removal in the Castro. & flip flopping on having the Trans flag fly at Harvey Milk Plaza has proven.

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      • Ramón says:

        Joe: That’s a leap that would even give one of those audacious divers in Acapulco pause!

        Oh, and being a sycophant isn’t going to land you a date with Wiener.

        If you think that his full frontal assault (see what I did there?) on nudity is an “excellent job”, then you’ve set the bar too low and you’re getting, contrary to the rest of us, the level of government you deserve.

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  5. bear on the peaks says:

    thank you scott weiner from this castro neighborhood resident. i am so sick of all the old white guys in wigs and sunglasses waving their genitals slathered in oil at everyone and telling me i’m a prude for not allowing them to be in their “natural” state! i don’t have a problem with nudity. i have a problem with disrespectful, narcisstic jerks using my neighorhood for a cause that only priviledge white males could espouse. i will do everything i can to make sure they get kicked out of the castro for good. as for attorney, christina diedoardo, don’t expect me to support transgender causes anymore. why don’t you and your naked guys all go join your poster child gypsy at her home in berkeley… oh that’s right.. berkeley don’t want naked jerks either!

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    • Christian Figueroa says:

      Next, they should ban bears. It is a bad message to send out to people that being fat is acceptable. Just because it is natural to be fat and hairy doesn’t make it right for those of us that don’t want to see that.

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  6. YES says:

    To put the entire accepted legal definition would be very long. Here is a much shorter version. You can find this information in its entirety in any good law dictionary. Know what you are shouting. Freedom of speech by law, does carry these meanings.

    Freedom of speech. Right guaranteed by First Amendment of the U.S. constitution to express one’s thoughts and views without governmental restrictions. See also Fighting words doctrine; Liberty (Liberty of speech, Speech or debate clause.

    Fighting words doctrine. The First Amendment doctrine that holds that certain utterances are not constitutionally protected as free speech if they are inherently likely to provoke a violent response from the audience. N.A.A.C.P. v. Clairborne Hardware Co., Miss., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982).

    Words which by their very utterances inflict injury or tend to incite an immediate breach of the peace, having direct tendency to cause acts of violence by the person to whom, individually, remark is addressed. The test is what persons of common intelligence would understand to be words likely to cause an average addressee to fight. City of Seattle v. Camby, 104 Wash.2d 49, 701 P.2d 499, 500.

    The “freedom of speech” protected by the Constitution is not absolute at all times and under all circumstances and there are narrowly limited classes of speech, the prevention and punishment of which does not raise any constitutional problem, including the lewd and obscene, the profane, the libelous, and the insulting of “fighting words” which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinisky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

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  7. YES says:

    in my previous comment, the last paragraph, I intended to say, ….and the insulting or “fighting words”…

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