The Volokh Conspiracy

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Volokh Conspiracy

"No nudes is good nudes" is constitutional, but discriminatory enforcement violates First Amendment


So holds Hightower v. City & County of S.F. (Dec. 24, 2014), allowing plaintiffs' First Amendment case to go forward. Plaintiffs say they had been arrested for protesting nude against the San Francisco public nudity ban. That, the court concludes, would have been fine if the public nudity ban were evenly enforced:

Here, Defendants' legitimate interest in protecting the unsuspecting passerby from nudity as well as the other stated interests would be achieved less effectively, indeed defeated, absent § 154's restriction on public nudity.

But the plaintiffs sufficiently alleged that S.F. deliberately allowed some expressive public nudity, and didn't allow theirs:

Here, Plaintiffs' complaint provides three different control groups, consisting of publicly nude individuals involved in: Critical Mass, The World Naked Bike Ride, and the Naked Sword film-shoot. Plaintiffs allege that at all three of these San Francisco events, groups of people engaged in publicly nude conduct, in violation of Id. Plaintiffs further allege that none of these events sought to express an "anti-§ 154" [i.e., anti-public-nudity-ordinance] message and that at all three of these events, the SFPD were present but did not enforce the Ordinance. By contrast, each time the Plaintiffs engaged in nude conduct that expressed an "anti-§ 154" message, the SFPD enforced § 154, issuing citations and detaining the Plaintiffs and their confederates.

Further, Plaintiffs allege five separate instances in which it applied for parade permits, where their nude demonstrations could comply with the requirements of § 154 [because of an exception in the ordinance for a "permitted parade, fair, or festival held under a City or other government issued permit"], but the SFPD ignored their applications. Plaintiffs also allege that on two occasions, the SFPD denied their applications in a manner that deviated from SFPC §370-71. On one of those occasions, the SFPD refused to provide a written denial providing the reason for its denial. On another occasion, Plaintiffs allege that the SFPD provided a written denial stating that the parade permit was denied because "[p]ublic nudity violates SF Police Code 154." That rationale is not explicitly listed as an appropriate ground on which to deny a permit application.

Taken as true, the facts alleged show that each time that the Plaintiffs attempted to express an "anti-§ 154" message through their nude conduct, the SFPD enforced the Ordinance against them. By contrast, the SFPD did not enforce the Ordinance against nude demonstrations that did not express an "anti-§ 154" message. Moreover, the facts alleged indicate that the SFPD deviated from protocol in ignoring and denying the Plaintiffs' permit applications. Taken together and viewed in the light most favorable to the Plaintiffs, the Court determines that these facts lend support to a plausible inference that the SFPD took action against the Plaintiff "because of not merely in spite of" its anti-§ 154 message. Thus, … the Court DENIES the Defendants' motion to dismiss this claim.

Sounds right to me, and may be relevant in other (non-nudity) cases as well, for instance when a city has tolerated the use of public space by Occupy protesters but now refuses to allow similar use by other protesters.