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Bush v. City of San Diego


June 11, 2010


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


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 on foreign oil

* Beauty and inherent decency of the human body

* Use of public nudity to affect social change

It's hard to see how all of these fit together, and particularly how nudity and the "inherent decency of the human body" relate to a normative message of oil independence. Does nudity, by itself, communicate an intelligible message such that there a First Amendment right to be naked? The Supreme Court has already weighed in on this question, and has answered "no": "Being 'in a state of nudity' is not an inherently expressive condition." City of Erie, 529 U.S. at 289. Here, as in City of Erie, the link between the riders' nudity and their message is similarly attenuated.*fn6

To obtain the relief she seeks, Bush must establish that she's likely to prevail on the argument that San Diego's anti-nudity ordinance violates the Constitution.*fn7 Winter v. Natural Resources Defense Counsel, Inc., 129 S.Ct. 365, 374 (2008) (standard for injunctive relief). After giving respectful consideration to Plaintiff's arguments, the Court concludes the converse is true: it is highly unlikely she will prevail on the merits. For this reason, the Court DENIES Plaintiff's request for a TRO.

Plaintiff argues the ordinance is overbroad, but the overbreadth doctrine is of no help to her. "Ordinarily, the principal advantage of the overbreadth doctrine for a litigant is that it enables him to benefit from the statute's unlawful application to someone else." Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483 (1989). See also Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987). Here, in contrast, Plaintiff's primary concern is that San Diego's anti-nudity ordinance infringes upon her own protected speech. In fact, she doesn't identify anyone else whose arguably legitimate speech may be threatened by the ordinance.

The real issue Plaintiff's TRO request presents is what level of scrutiny the Court should apply in evaluating her First Amendment challenge? To determine that, the Court initially asks whether the ordinance is related to the suppression of expression. Texas v. Johnson, 491 U.S. 397, 403 (1989). If it's not, it need only pass a four-part test from United States v. O'Brien, 391 U.S. 367 (1968) for restrictions on symbolic speech. Under O'Brien, a government regulation is sufficiently justified if: (1) it is within the constitutional power of the Government; (2) it furthers an important or substantial government interest; (3) the government interest is unrelated to the suppression of expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377.

No matter what Plaintiff may believe about the incidental effects of the ordinance on her speech, it isn't in any way related to suppressing expression. The ordinance merely prohibits public nudity, and by its terms regulates conduct alone. Nothing in the text suggests a purpose to suppress speech or any particular message. To the contrary, the ordinance was enacted "for the purpose of securing and promoting the public health, morals and general welfare of all persons in the City of San Diego," as well as to prevent residents of San Diego from being "unwillingly exposed" to nudity and taking offense to it. San Diego Municipal Code § 56.63(a).*fn8 The O'Brien test therefore applies to Plaintiff's claim that the San Diego ordinance violates her First Amendment rights.

Plaintiff doesn't dispute that the City of San Diego had the authority to enact the anti-nudity ordinance. And, the text of the ordinance explains that one of its several purposes is to promote public health, morals and general welfare. San Diego Municipal Code § 56.53(a). The Supreme Court has explainedthat a city's "efforts to protect public health and safety are clearly within the city's police powers." City of Erie, 529 U.S. at 296. The first O'Brien factor is satisfied.

O'Brien next requires that there be a substantial government interest supporting the regulation. The San Diego ordinance identifies two: preventing offense to those unwillingly exposed to nudity and promoting the public health, morals, and general welfare. Although Plaintiff argues that the likelihood of others taking offense can't be grounds for restricting speech, citing Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994) (overturning injunction restricting speech of antiabortion protestors) and Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978) (invalidating ordinance prohibiting dissemination of materials promoting hate), the ordinance really isn't directed at expression at all, and therefore doesn't seek to avoid offending people with speech.*fn9 Rather, it seeks to avoid offending people with nudity, which the Supreme Court has held is not speech. City of Erie, 529 U.S. at 289.

Regardless of whether the Court agrees that protecting citizens from unwanted exposure to nudity is itself a substantial government interest, public safety surely is. Naked people can and do draw crowds, some of whom may react to their presence in hostile or disorderly ways. Crowds also present a public safety hazard in their own right, in that they distract people's attention from their immediate surroundings, which is uniquely dangerous on public streets and rights of way. See, e.g., Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997) (recognizing government has a substantial interest in "promoting the free flow of traffic on streets and sidewalks"); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009) (recognizing "a somewhat greater governmental interest in regulating expressive activity on city streets because of the public safety concerns raised by vehicular traffic"). The intended course for the Naked Bicycle Ride is along well-traveled streets and through densely areas of the City of San Diego. It is a sure bet the ride will distract drivers, and distracted drivers present an obvious public safety concern. Drivers are simply not at liberty to avert their eyes. Finally, the text of the ordinance specifically mentions public health, and it's not far-fetched to conclude that objective is furthered by prohibiting naked throngs of bicyclists from crowding the streets, thereby enhancing the possibility of accidents. For all these reasons, the Court finds the anti-nudity ordinance reasonably furthers an important government interest: safety. It satisfies the second factor O'Brien factor.

The point was made earlier, but to reiterate, the Court concludes the ordinance satisfies the third O'Brien factor: It is unrelated to the suppression of expression.

That leaves the last O'Brien factor: whether the anti-nudity ordinance is narrowly-tailored to advance the government interests just identified. A government regulation is narrowly tailored if it "targets and eliminates no more than the exact source of the 'evil' it seeks to remedy." Russell C. Frisby, et al. v. Sandra C. Schultz, et al., 487 U.S. 474, 485 (1988). The Supreme Court in City of Erie found that an erotic dancer's message wasn't fatally compromised by requiring her to wear pasties and a G-string. A similar conclusion is warranted here. The minimal clothing ride participants have to wear to comply with San Diego's anti-nudity ordinance will not significantly compromise their message that oil and technological dependence, and the environmental degradation that accompanies them, can be avoided with a return to more native ways of living. Even Tarzan and Jane could deliver the riders' message without running afoul of the ordinance.*fn10 Because the law is narrowly tailored, it passes the fourth O'Brien test.

In sum, the Court concludes San Diego's anti-nudity ordinance passes the O'Brien test, and as a result, Plaintiff isn't likely to prevail on her claim that the ordinance violates her rights under the First Amendment. That determination suffices to DENY Plaintiff's request for injunctive relief.


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