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Bush v. City of San Diego

June 11, 2010

SARAH E. BUSH, AN INDIVIDUAL, PLAINTIFF,
v.
CITY OF SAN DIEGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorabl Elarry Alanburns United States District Judge

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; AND ORDER DENYING EX PARTE THE APPLICATION FOR TEMPORARY RESTRAINING ORDER

The Court held an emergency hearing on Plaintiff's Application for a Temporary Restraining Order on June 4, 2010 and denied the Application. This Order memorializes the Court's findings announced at that hearing.

Plaintiff Sarah Bush*fn1 is the organizer of the San Diego Naked Bicycle Ride (the "Ride"), scheduled for June 12, 2010 between 5 and 7 p.m. The date is firm; it's the same date other Naked Bicycle Rides are scheduled around the world, all with the purpose of protesting "petroleum based transportation systems and technology." (Compl. ¶ 8.) As Plaintiff describes it, the protest "is comprised of adults who strip naked, paint slogans on their bodies, and ride bicycles along a 10-mile route between Hillcrest and Downtown San Diego." (Id.)

Plaintiff's problem is that San Diego has an anti-nudity ordinance which the ride will undoubtedly violate, and San Diego officials have warned Plaintiff they'll enforce it on June 12, whether by issuing citations, arresting riders, or otherwise interfering with the ride. Plaintiff has asked the Court to issue a TRO forbidding the police from taking such actions on the ground that enforcement of the anti-nudity ordinance would violate her First Amendment rights.*fn2

The anti-nudity ordinance, in relevant part, says:

Nudity Prohibited. No person over the age of ten years shall be nude and exposed to public view in or on any public right of way, public park, public beach or waters adjacent thereto, or other public land, or in or on any private property open to public view from any public right of way, public beach, public park, or other public land.

San Diego Municipal Code § 56.53(c). One of the explicit purposes of the ordinance is to prevent members of the public from being "unwillingly exposed" to and offended by nudity. Id. at § 56.53(a).*fn3 Much of the case law addressing the intersection of nudity prohibitions and the First Amendment involves cases in which strip clubs argue that the former violates the latter.*fn4 This isn't that kind of case.*fn5 In fact, it seems obvious that nudity isn't so much the message that Plaintiff wants to convey as it is a means of amplifying their primary message, which seems to be, "America is too dependent on oil, to our great ecological detriment." Nudity has the potential to amplify that message only because it naturally amplifies any message by attracting attention and publicity. Plaintiff's message is otherwise old hat.

Bush argues that by riding nude, ride participants are likely to advance the utilitarian end of calling attention to their cause. Her TRO request identifies the following issues about which she hopes the ride will stimulate awareness and discussion:

* Fragility of the human body and sanctity of life

* Safety of bicyclists while sharing roads with motorists

* Effects of vehicle emissions on human health and the environment

* Effects of our current transportation system and technology on culture and the human spirit

* Threat to national security due to dependence ...


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