A few days ago while driving through San Francisco, a local news story there caught my interest. Now ‘the City by the Bay’ remains forever a place holding my great affection — not just because of its sights and foodie delights but because of its unmistakable quirkiness. These days, however, as per the news story, that quirkiness is being pushed to the limit.
It’s due to a fraying of the City’s longstanding tolerance of public nudity or said another way, it’s because of too much unbridled uninhibitedness that might elsewise be considered “an intent to affront or alarm“ — like in Omaha, for instance.
It seems some locals have finally had enough of two Castro Street naked guys who some say have gone too far, having supposedly taken San Francisco’s renown tolerance for two cheeks bared and squared to an entitlement-minded extreme.
Others might argue it’s about time since it’s been a long while that “Crazy San Fran’s” Castro Street has been a boon not only for freedom-loving naked insouciance but for the tourists who take pictures of the bare there. It seems, though, that a line may have at last been crossed into outright public lewdness sufficient perhaps to insolently transgress Mrs. Patrick Campbell’s broad-minded nonchalance, “so long as they don’t do it in the streets and frighten the horses!”
“I’m all for live and let live, but this has gotten out of hand,” said one local last year around the same time that county supervisor Scott Wiener was sponsoring an ordinance to “require that people show some basic courtesy and decency toward their fellow citizens when they are naked” by placing a barrier between bare backsides and seats.
The constitutionality of baring it all.
But can Scott Wiener do that? Don’t people have a constitutional right to stroll the streets in their birthday-suits? Unless the public nudity involves protected forms of First Amendment expression, the answer is “No.” Consequently and notwithstanding San Francisco’s aversion to do so, states and municipalities can indeed enact and enforce content-neutral public nudity ordinances so long as “they (1) are within the constitutional power of the government to enact; (2)further a substantial government interest; (3) are unrelated to the suppression of free expression; and (4) restrict First Amendment freedoms no greater than necessary to further the government’s interest.” See United States v. O’Brien – 391 U.S. 367 (1968)
However, it’s one thing to claim conduct as symbolic expression intending to convey an easily understandable message and it’s quite another to convince a court given the well-settled legal precedents. Indeed, even if two naked guys sitting in a cafe amounts to symbolic expression or expressive conduct, it doesn’t mean they’re guaranteed the right to declare their opinions “in any place, at any time and in any manner.” Moreover, it’ll be quite the stretch if these two guys or their like-minded compadres decide to cheekily assert their public nakedness amounts to a particularized message that’s Constitutionally protected First Amendment speech. Now, that’ll be a position guaranteed to elicit yucks of a different kind.
Photo Credits: “San Francisco Skyline through the Golden Gate Bridge” by kangotraveler at Flickr Creative via Commons-licensed content requiring attribution;”Silly face runner-up,” by Linda Hartman at Flickr Creative via Commons-licensed content requiring attribution;”track O’The Tires,” by guydonges at Flickr Creative via Commons-licensed content requiring attribution; “Nudists on Strike,” by danishdynamite at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution; “From the horse’s nose,” by Kyknoord at Flickr Creative via Commons-licensed content requiring attribution.