Bare-naked ladies (and gentlemen): analyzing protection of nude protesting under the First Amendment and state constitutions.

AuthorAmbacher, Mary C.
  1. INTRODUCTION

    The cover of John Lennon's 1968 record Two Virgins shocked the world by showing Lennon and Yoko Ono naked, which was an unheard of act of controversy for a popular celebrity at the time. (2) Today, however, public nudity in the context of protest has become prevalent around the world. (3) This trend holds true in the united States as well, as there are numerous examples of protesters utilizing nudity as a method of protest. (4) Many groups have recognized that the utility of and prominent reasons for protesting nude include the ways in which it immediately garners attention, fosters discussion in the media, and places the protesters' messages into the public sphere. (5)

    The recent phenomenon of protesting nude raises legal questions concerning conduct as protected speech and freedom of expression. (6) The Supreme Court has recognized that not all forms of expressive conduct are protected as "speech" under the First Amendment to the U.S. Constitution. (7) The act of protesting nude, however, is likely not protected under the First Amendment. (8) Several court decisions have highlighted that utilizing nudity in protest is only protected under the First Amendment if the protester's message is intertwined with the conduct itself. (9) While protesting nude is likely not protected under the First Amendment that does not mean it is not otherwise protected. (10)

    Federalism is one of the bedrock principles upon which this country was founded, and in the late 1970s the Supreme Court started to return to the fundamental promises "wrought by the blood of those who fought our War between the States" and to recognize that both state and federal government play a role in protecting individual rights. (11) Justice William J. Brennan said, "state courts no less than federal are and ought to be the guardians of our liberties." (12) Even though the U.S. Constitution may not protect or recognize an individual right, the states may interpret their own constitutions to afford that right. (13) Specifically, the rights afforded under the First Amendment have been greatly expounded upon by individual state constitutions. (14) Public nudity laws differ among states, but the right to protest nude has been acknowledged by some state courts as protected speech under their respective state constitutions. (15)

    This Note will analyze the implications of discordant federal and state laws on the issue of protecting protesting in the nude, as well as discuss which states' models work best for handling this controversial issue. This Note will begin by providing the history of protected speech under the First Amendment, particularly focusing on why nude protesting, as of now, is not likely protected speech under the Federal Constitution. (16) Next, it will offer an overview of the concept of federalism and its foundational principles. (17) This Note will then analyze the implications of having varying state and federal laws on nude protesting. (18) Further, it will discuss at what level nude protesting should be regulated, whether it be on a national, state, or municipal level. (19) Lastly, this Note will provide different state models for regulating personal liberties and decide which model is best suited for regulating nude protesting. (20)

  2. HISTORY

    1. First Amendment

      The right to free speech, which is embodied in the First Amendment, is one of the fundamental cornerstones of American society. (21) The First Amendment, although simple in its construction, encompasses extensive legal protections. (22) The text of the First Amendment states, "Congress shall make no law ... abridging the freedom of speech, or the press...." (23) Fundamentally, the First Amendment prohibits government restrictions on expression based on the expression's content. (24) Over time, the few words that comprise the First Amendment have come to protect more than just speech in a strictly literal sense; they protect "symbolic speech" as well. (25)

      In the seminal case of United States v. O'Brien, (26) the Supreme Court recognized that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct," the First Amendment may protect both the speech and nonspeech aspects. (27) Legal commentators have even remarked that there is little distinction between speech and conduct under the First Amendment. (28) Nonetheless, the Court has not recognized that the right to free speech and expression is absolute. (29) There are several recognized exceptions to the right of free speech including illegal activity, fighting words, and obscenity. (30)

      Notwithstanding these exceptions, at minimum, conduct will be constitutionally protected as expression or speech if the person intended to convey a message through it. (31) The Court, however, has sustained laws that prohibit such expressive conduct, but only as an incidental effect of proscribing the activity for other reasons. (32) The level of scrutiny a court applies to a challenged law weighs heavily on whether it will be upheld or struck down, and often accounts for discrepancies between two otherwise similar laws. (33) If the purpose for enacting a challenged ordinance or regulation was to suppress expression, then the court will apply the strict scrutiny test. (34) If the purpose behind enacting the ordinance or regulation was unrelated to suppressing expression, however, then a court will apply the less exacting O'Brien test. (35)

      Further, even though the First Amendment applies to the federal government, the Fourteenth Amendment prohibits state governments from depriving any citizen of their liberty without due process of law, which, through analyzing the Amendment's history, has come to protect freedom of speech. (36) It was not until the early twentieth century that the Court recognized the application of the First Amendment to the states. (37) The Court construed this protection narrowly, however, allowing states to freely regulate the speech of their citizens. (38)

    2. Nude Protesting Under the First Amendment

      Public nudity itself is not protected expression under the First Amendment. (39) Courts have continuously held that "unassociated nudity"--nakedness that is not tied to some type of protected expression--is subject to governmental regulations. (40) If such nudity is not interrelated or highly intertwined with a form of protected speech, it is within the states' police powers to regulate. (41) In instances where public nudity is significantly interrelated with the protected speech, the nudity may be protected. (42)

      Nudity, in the context of the First Amendment, has been most prevalent in the context of nude dancing. (43) The Court has recognized that nude dancing is "within the outer ambit of the First Amendment;" however the reason for enacting an anti-nudity statute is determinative of the level of scrutiny to be applied in evaluating its constitutionality. (44) In City of Erie v. Pap's A.M., (45) the Court considered the City of Erie's ordinance that made intentionally appearing nude in public a summary offense--requiring workers at a club to wear G-strings and pasties to comply with the statute--and held that it was constitutional. (46) The City enacted the statute to combat the secondary public health and safety effects of nude dancing, including public intoxication, sexual harassment, and prostitution; the suppression of expression, therefore, was not the City's main objective. (47) The Court held that general bans on conduct are not subject to the traditional strict scrutiny standard, like other First Amendment challenges, but rather are subject to the less stringent test created in United States v. O'Brien. (48) Applying the O'Brien test to the Erie city ordinance, the Court held that it was constitutional. (49)

      The Court has looked at the question of nude dancing in other cases, but has not offered much additional insight regarding whether nudity itself is protected as expressive conduct under the First Amendment. (50) Although the Supreme Court has never specifically ruled on the issue of whether nude protesting is protected by the First Amendment, existing case law supports the proposition that unassociated nudity is not protected, leaving, therefore, only a narrow context in which nude protesting would be protected. (51) Nudity is often linked to sexual or obscene conduct, but whether nudity itself is labeled as obscene, protected expression, or speech is context specific. (52) In Roth v. United States, (53) the Supreme Court distinguished between material that is obscene and material that should be safeguarded by the First Amendment. (54) In the context of protesting, nudity has become a popular method for protesters to both attract attention and convey their messages. (55) When protesters use nudity for the sake of nudity itself, or because they try to attract additional attention to their message, it is unlikely that a court will uphold the nudity as protected speech under the First Amendment. (56)

      In order for the act of nudity to obtain First Amendment protection it must be considered symbolic speech because the act of being nude alone is not expressive conduct. (57) The Court in O'Brien stated that symbolic speech cases will turn on the question of whether alternative avenues of communication exist. (58) The Court held that if there are other satisfactory modes of communication, then the conduct at issue would not be protected as long as there is a "sufficiently important governmental interest in regulating the non-speech element." (59) Consequently, when nudity is unassociated or not sufficiently intertwined with the message being protested, the nudity will be considered conduct and thus subject to government regulation. (60) Conversely, if the nudity is sufficiently intertwined with the message being communicated, it falls within the modest segment of messages that relate to nudity, and the act will be protected as symbolic speech. (61) As such, it appears...

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