Tag Archives: First Amendment

Fed Judge Upholds City Nudity Ban

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US Federal Judge Edward Chen of the District Court for the Northern District of California

US Federal Judge Edward Chen of the District Court for the Northern District of California

The last bell has rung in the fight between the pro-nudity camp and the City. On Tues. the 29th a Federal Judge reviewing the case ruled the City’s pick and choose nudity ban didn’t violate anyones First Amendment rights of self-expression.

The new law, penned by the Castro’s own Dist. 8 Sup. Scott Wiener, will go into effect as planned on February 1st, 2013.

Federal Judge Edward Chen, an Oakland native who has been on the bench since his appointment in May 2011 stated in an 18 page opinion that, “in spite of what plaintiffs argue, nudity in and of itself is not inherently expressive.”

Judge Chens’ decision upholds the tenor of a precedent ruling made by the the US Supreme Court around a similar nudity case where the violation of a citizen’s First Amendment, freedom of expression, right to be nude was at the core of it’s substantive argument.

San Francisco plaintiffs had hoped they might have a unique angle with this particluar suit citing how the SF nudity ban is a pick and choose law in regards to where citizens may or many not show the full monty. Naked at Folsom Street Fair or during Bay to Breakers? Yes. Nude sunbathing in Jane Warner Plaza or Golden Gate Park? No, not so much.

A nude man protests against the ban on nudity in San Francisco (Photo: Reuters)

A nude man protests against the ban on nudity in San Francisco (Photo: Reuters)

The judge said while this may be unfair of the City but its not, in this context, violating anyone’s rights.

Legal eagle for the four nudist activists who brought the suit, attorney Christina DiEdoardo, speculated her clients may want to appeal. She thinks that if they can show how their individual rights are being legally disregarded once the ban is in place they would stand a better chance of winning.

The judge seemed open to the idea if, and only if, there is absolute proof of First Amendment infringement.

Last day for the public to strut their junk without fine, ticket or jailtime is Thursday, Jan. 31st. Forecasters predict SF weather will be sunny, cloudless, with a slight breeze and top out at 62 degrees for folks out there who want to make use of the final day to be as naked and free as Adam and Steve/or Eve.

 

UPDATE: Petrelis vs. Wiener, Let’s Get Ready to RrrummmBBLLEE!!

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Supporters and Michael Petrelis (Center) and his lawyer, Dereck St, Pierre (Right) Photo: KTVU

Step up to the ring folks-things are about to get dicey, once again, in local Castro, Queer political circles.

As the Biscuit posted on Nov. 30th, Dist. 8 Sup. Scott Wiener asked the SF District Attorney’s office to press charges against Michael Petrellis, longtime LGBTQ activist, blogger, and local politician’s nightmare, for violating criminal codes while attempting to take pix of the Supe peeing in a city hall bathroom back in October. Petrelis posted about the attempted glimpse of Wiener’s wiener incident on his blog Oct. 27th. In it the offending published pix had no penis portrayed just the Supe, bent over a basin, tooth brush in hand, practicing another oral skill-good gum and teeth hygiene.

On Wednesday Mr. Petrellis found himself in court where he pleaded not guilty to misdemeanor charges of disorderly conduct. In addition he was ordered by Judge Donna Little to stay at least 150 feet away from the Supervisor at all times. Mr. Petrelis’ attorney, Dereck St Pierre, argued the restraining order was unjust as Mr. Wiener is a public official and Petrelis merely a citizen. He also added that the order would cause undue hardship and keep his client from pursuing his journalistic endeavors.

Judge Little didn’t buy that argument. She believed that Mr. Petrelis had exhibited a pattern of harassing behavior. Supporters of Mr. Petrelis bearing signs that said, ‘I LIKE MIKE’, disagreed with the judges ruling bemoaning that it was actually a violation of Mr. Petrelis’ first amendment rights.

Sup. Scott Wiener at a recent City Hall hearing not feeling the love. Photo: Luke Thomas

Mr. Weiner’s original complaint highlighted what he told the Sheriff Dept has been, “an ongoing history of inappropriate and harassing behavior” and that he (Petrelis) “had yelled at me in public before as a result of political disagreements.” That is a bit of an understatement as even we here at The Biscuit have seen Mr. Petrelis with a bullhorn on at least one occasion shouting out at the Supe his ‘disagreements’ over policy, ideology, MUMC, bench removal at Harvey Milk Plaza, the nudity ban, Gay Flag usage, leadership/or lack of leadership and direction of the legacy of the Queer community and it’s politics here in the Castro whose reins now lie in the hands of Mr. Wiener.

This political and legal tug of war will now wind it’s way back through the court as Mr. St. Pierre has said they will fight this charge to the fullest extent. Mr. Petrelis was uncharacteristically mum post hearing allowing his lawyer to do all the talking. We will keep you abreast of the developments as they happen but at the end of this skirmish we are posting a score of Wiener 1, Petrelis 0.

UPDATE: Nudity Ban Heads To Mayor For Signature-Nudists Vow Fight Not Over

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Nude Protestors in front of City Hall (Photo: AP Newswire)

Today marks what many in the Castro hopes is the final chapter of nudist letting it all hang out at Jane Werner Plaza. The Board of Supervisors had it’s second, perfunctory meeting regarding Sup. Scott Wiener’s proposed measure halting public nudity, and approved it.  The decision, which was booed and heckled by members of the public in favor of nudity, now goes to Mayor Ed Lee for his signature. He has indicated that he will happily sign it.

The minute the gravel struck at least six people stripped down and began yelling insults at the board. Sheriff’s deputies quickly covered the naked men and women with blankets and hustled them out of the chamber, but not before one man warned that the vote would send the wrong message to children about their bodies and encourage anorexia, bulimia and sexual intimacy issues.

The law stipulates some leeway in nudity. Exemptions include nudity at private beaches, private property and permitted special events such as Bay to Breakers or the Folsom Street Fair and doesn’t apply to children under 5 years old. The ban once signed is expected to go into effect by February 2013.

Those who want to violate the law could expect to be fined $100 for the first offense and $200 for the second in a 12-month period. Convictions under the proposed law wouldn’t result in a sex offense, but a third offense could bring a $500 fine or a misdemeanor. Nudist have already put together a class action suit saying the law will violate their first amendment right to freedom of expression. As we reported a federal judge will review the merits of that suit.

Federal Judge to Review the Nudity Ban

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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.