In a city where everything is political, is everything really political? What about cock rings? Yes, really.
The city's indignant nudists have quite literally made a federal case out of Supervisor Scott Wiener's ordinance banning disrobing in most public venues. Today the nudists' and city's attorneys clashed before District Court Judge Edward Chen.
It will be up to Chen to determine where Constitutionally protected political activity ends and mere public nudity begins. Sometime before the ordinance takes effect on Feb. 1, he will weigh in on whether to grant the city's motion to dismiss the nudists' suit or accommodate the nudists and issue an injunction against punishing public nudity. And while Chen is making up his mind, the city's "urban nudists" have two more weeks to gallivant about the city au naturel.
During the lunchtime rush, a handful of nudists bared their wares in front of the Federal Building. Entering the hulking structure is an experience akin to entering an airport -- and, counter-intuitively, many of the nudists took a great deal of time to go through security, trickling into the hearing on the late side.
See Also: Overexposed: The Story That Started It All on Castro Nudists
The 90-minute hearing was a low-decibel and mostly cordial affair punctuated by numerous case citations and cavalcades of legal jargon. If not for eccentrically dressed members of the gallery and the frequent recitation of the ordinance's text -- "A person may not expose his or her genitals, perineum, or anal region ..." -- one could be forgiven for thinking he'd wandered into the wrong room.
Then the judge started talking about naked dancing.
Prior Supreme Court cases, noted Chen, have made allowances for nude dancing exhibitions or other artistic acts of nudism as distinguished from the simple state of being naked. Quoting former Justice David Souter, Chen noted that "performance dancing is inherently expressive. Nudity, per se, is not." Merely being unclothed at "parks, beaches, and hot dog stands" is not worthy of First Amendment protection, per Chen. The judge further expressed that the scope of Wiener's ordinance, as compared to prior attempts to ban public nudity elsewhere, was "fairly narrowly drawn."
Chen, however, exposed the (naked) elephant in the room when he asked Deputy District Attorney Tara Steeley what the city would do if, on Feb. 1, nudists disrobed to protest a law against nudity -- an act that would be difficult to decouple from protected political speech.
"I can't speculate," she answered. "But the prohibitions of the ordinance are clear. That's really all I can say." Later, however, she acknowledged that if being nude is de facto political speech, allowing exemptions to the nudity ban for political speech would "be the exception that swallows the rule."
Following the hearing, SF Weekly
asked Steeley if a protester drawing attention to the state of the rainforests via nudity would fall afoul of the ordinance. She answered that "nothing in the ordinance prevents people from expressing themselves regarding the rainforests. It simply regulates conduct." But it remains to be seen if the men and women lounging about in the nude today can, in a few weeks' time, simply tote a political placard of some sort to toe the legal line. Their attorney, Christina DiEdoardo, has already suggested as much
DiEdoardo lumped the nudity ban in with a prior city ordinance preventing the disabled from walking the streets in public -- which she claimed, astoundingly, was on the books as late as 1962. Chen, however, noted that this would be a ban on status, as opposed to the current ban, which deals with conduct.
When asked by the judge what particular political message is being squelched by the nudity ban, DiEdoardo could only answer "they are squelching the message of the nudists." One of them, her client George Davis, ran for mayor and District 6 supervisor as the naked candidate
Citing a Supreme Court case affirming one's right to burn a flag, she noted, "It's no less expressive to be nude in public when the norm is to not be nude." Perhaps, but Chen nipped that line of argumentation in the bud. "Before you get there, the Supreme Court has said that expressive conduct requires not only intent to convey a message but a message that can be understood. Flag-burning is a pretty clear message. Walking or being nude ... to me doesn't have that same particularized message."
Steeley, meanwhile, said the city was empowered to ban nudity to mitigate "the harms people are experiencing within the context of nudity." She appeared to wander into more precarious territory, however, when she claimed that traffic safety is compromised by adults forming human barriers to shield children from nudists, or motorists are distracted by the sight of naked people. She also cited an informal poll stating 85 percent of Castro businesses are suffering due to pervasive nudists in the vicinity. It seems safe to assume this poll did not appear in a peer-reviewed journal.
Following the hearing, nudists and anti-nudists wandered down the halls, forming a bottleneck at the elevators. A somewhat unhinged young man wearing a Pepto Bismol-pink dress and a huge bonnet and a woman outfitted in a crimson burqa wandered into the elevator. Though the crowd outside was large and growing ever larger -- and everyone badly wanted to descend from the 17th floor -- hardly a soul deigned to join them within.