Thursday, November 15, 2012
Proposed Ordinance 120984 banning public nudity, scheduled for vote by the San Francisco Board of Supervisors on November 20, is already the subject of a constitutional challenge filed in federal court.
This pre-enforcement - - - indeed, pre-adoption - - - challenge suffers from a lack of Article III ripeness, but an adoption of the ordinance and the passage of 30 days for the ordinance to become effective would cure that defect.
On the merits, the complaint alleges that the proposed ordinance violates the First Amendment and the Equal Protection Clause. One of the more interesting arguments flows from one of the proposed ordinance's two exceptions: any person under the age of five years, and "any permitted parade, fair, or festival held under a City or other government issued permit."
The more generalized First Amendment challenge to a law banning nudity is not likely to suceed under the federal constitution. However, the California constitution could certainly be construed to protect nude expression. And even more compelling are the political and social arguments presented to the San Francisco Board of Supervisors that focus on San Francisco's identity as a haven for free expression, including nudity.
UPDATE: Federal District Judge Edward Chen granted the defendants' motion to dismiss the complaint in his Order (January 29, 2013).