SAN FRANCISCO (CN) - Nudists have taken pre-emptive action against San Francisco's proposed ban on public nudity, filing a federal class action claiming the city-county's move would violate their constitutional rights.
Lead plaintiffs Mitch Hightower, Oxane "Gypsy" Taub, George Davis and Russell Mills sued the City and County of San Francisco and three of its supervisors - David Chiu, Scott Wiener and Angela Calvillo. They seek declaratory judgment and injunctive relief.
The San Francisco Board of Supervisors plan to vote on Wiener's proposed ordinance at its Nov. 20 meeting. Wiener represents the Castro District - notorious for nudity - and told NBC News that a neighborhood square in his district is becoming "an ad-hoc nudist colony."
San Francisco's parks and port property already prohibit nudity.
Wiener successfully encouraged a law requiring nudists to place a cloth buffer between their "genitals, buttocks or anal region and the public seating" in 2011.
The new ordinance would require clothing on public transit, sidewalks and city streets, plazas and parklets.
The city's street fairs, festivals, parades and beaches would still welcome nudists, but the plaintiffs say it's not enough.
Hightower claims his annual "Nude-In" promotes "a spirit of tolerance, peace and fellowship among the attendees."
Taub says she uses her naked body "as an integral part of her political speech" and produces "a television program on nude activism, including but not limited to nudity in public spaces."
Davis says he was a candidate for mayor in 2007, and "campaigned and debated in the nude as the 'nude candidate' and received over 600 votes citywide."
Davis ran for supervisor as the "nude candidate" in 2010 and "uses nudity as part of his political expression."
Fighting against the proposed ordinance appears to be plaintiff Mills' first brush with using his naked body as a political weapon. However, he says he runs the online group "Fans-of-Urban-Nudism."
The nudists say that the class they represent is "so numerous that joinder is impractical. Between the 'Nude-In,' the Global Naked Bike Ride, the San Francisco Pride Festival, the Trans March, the Dyke March, Dore Alley and the Folsom Street Fair, approximately several hundred people are nude at various times in public spaces in San Francisco during a typical year," according to the complaint.
The nudists say the proposed ordinance "violates the First Amendment rights to free speech and association because its provisions are overbroad and impermissibly burden speech without being tailored to the city's stated objectives."
They continue: "The mere status of being nude is not and cannot be considered a criminal offense. 'It is settled that mere nudity does not constitute a form of sexual "activity." ... Absent additional conduct intentionally directing attention to his genitals for sexual purposes, a person, as here, who simply sunbathes in the nude on an isolated beach does not "lewdly" expose his private parts within the meaning of [state law],'" the complaint states, citing In re Smith
, 7 Cal. 3d. 362, 366 (1972).
The nudists say they are entitled to a high level of protection because their nakedness is "inextricably intertwined with their political activism, including but not limited to their words and written statements." They also note that the proposed ordinance contains no exclusion for free speech.
They say the nudity ban also violates the equal protection clause of the Fourteenth Amendment since it creates two classes of nudists - the plaintiffs on one side, and attendees at city-sanctioned events where nudity is permitted.
The nudists point out that children younger than 5 are exempt from the proposed ordinance.
"Pursuant to the provisions of the proposed ordinance ... nudists could escape this Sword of Damocles in only two ways. They could be younger than 5 years of age, which is not practical for all of the named plaintiffs and proposed representatives of the plaintiff class or they could spend several hundred (or several thousand) dollars to a plethora of city agencies to obtain a special event permit each time they wanted to exercise their First Amendment right to expressive free speech," the complaint states. (Parentheses in complaint.)
If supervisors pass the ordinance, the nudists face up to $100 in fines for their first offense, $200 for a second offense within a year and either a misdemeanor or a $500 ticket for a third strike. A misdemeanor conviction carries up to a year in county jail, a $500 fine or both.
The nudists are represented by San Francisco civil rights attorney Christina DiEdoardo.