The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the U.S. Court of Appeals for the 9th Circuit held Thursday, in Taub v. City & County of S.F.:
Plaintiffs Oxane "Gypsy" Taub and George Davis …, self-described body freedom advocates, appeal the dismissal of their claims … against the City and County of San Francisco and the San Francisco Police Department … Plaintiffs allege that Defendants violated their First Amendment rights by enforcing San Francisco's public nudity ordinance.
1. Public nudity is not inherently expressive, but it may in some circumstances constitute expressive conduct protected under the First Amendment. Even if Plaintiffs' public nudity at political rallies was entitled to First Amendment protection, however, we hold that the challenged ordinance is a valid, content-neutral regulation as applied to Plaintiffs' expressive conduct under United States v. O'Brien (1968). O'Brien is the applicable test here because the ordinance is aimed at "the conduct itself, rather than at the message conveyed by that conduct."
The challenged ordinance satisfies … [the] O'Brien factors…. [T]he 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." … San Francisco's interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive. … [And] "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 San Francisco, 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….
Plaintiffs [also requested] leave to amend [their] Complaint in order to plead additional facts relating to the expressiveness of their nude rallies and demonstrations. Because we conclude that San Francisco's public nudity ordinance is a valid regulation under the O'Brien test, even if we assume that more of Plaintiffs' conduct was likely to communicate a message to those who saw it, Plaintiffs' complaint would not be saved through further amendment.
Recall that, despite the occasional talk of the First Amendment protecting nude dancing, the Supreme Court has held that a ban on public nudity—and even one that extends into strip clubs—is constitutionally permissible, see Barnes v. Glen Threatre, Inc. (1991). On the other hand, if a city does allow public nudity for some political events, then it might not be able to deny the same rights to people who want to participate in other events (see, e.g., this post); the 9th Circuit opinion did not deal with this issue.