“Being naked is a birth-given freedom, not a crime,” says Gypsy Taub, a San Francisco resident fighting for her right not to bear arms, but to bare all. Taub is protesting San Francisco’s new ban on public nudity, narrowly passed by the city’s Board of Supervisors in a 6-5 vote.
“The Castro, and San Francisco in general, is a place of freedom, expression and acceptance. But freedom, expression and acceptance does not mean anything goes under any circumstances,” says Supervisor Scott Wiener. “In the Castro, in particular, we now have men who take their clothes off and hang out every day of the week, and that has caused a lot of anger and frustration in the neighborhood.”
Opponents of the ban contend that police resources could better be spent fighting violent crime, instead of tracking down naked men roaming the streets.
However, there are some individuals, like Gypsy Taub, who are fighting the nudity ban on the grounds that their freedom of speech would be violated.
For their case, public nudity advocates cite the First Amendment. According to NYU law professor Amy Adler, one argument these nudists could make is that “being naked in the Castro could be seen as expressing a point of view about LGBT rights.” Adler notes however that the courts are unlikely to agree on such an interpretation based on precedent cases.
The Supreme Court has, in fact, held that nude dancing, as practiced in strip clubs, is a form of free speech according to Frederick Schauer, professor of law at the University of Virginia.
However, it ruled that establishments which offer displays of erotic dancing can be regulated. As long as the regulations are intended to deal with the side effects of such establishments – if they are causing a rise in crime, for instance – it is legal to impose a public nudity ban.
According to Adler, case law suggests the city was acting within its rights. “Even if the nudists could prove they were engaging in nudity for expressive purposes, the state has the right to regulate it,” she says, as long as the regulation is not about what’s being expressed, but the side effects that expression has on the rest of the city – for instance, heavy traffic or lowered property values.
But perhaps all hope is not lost for exhibitionist San Franciscans. The measure passed by the city includes exemptions for participants at permitted street fairs and parades, such as the city’s annual gay pride parade.
But if you’re a San Franciscan or anyone else who is disappointed with the ban, perhaps New York can help ease your suffering because yes, both men and women can walk around the city topless. And if you don’t like wearing pants, don’t forget that the city’s annual No Pants Subway Ride takes place in January. See you then.