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 | 1999-APR-06: Court of Appeals, 1st Circuit - ruling on child
pornography: From time to time, adults are charged with possessing
child pornography when they are found to have photographs showing
simple child nudity. Most often, this involves parents who have taken
innocent pictures of their children in the bathtub. Naturists are
particularly prone to police interference simply because they practice
family nudity. It is important
that the boundary between innocent photographs and child pornography
be defined. The 1st Circuit Court of Appeals, which has
jurisdiction over ME, MA, NH, Puerto Rico and RI, contributed to this definition.
The police had seized from the defendant some photographs of minors who were clearly involved in "sexually explicit conduct." They also seized a single photograph that the defendant had downloaded from the Internet. It showed an under-age naked female "standing or kneeling in a hole on a beach." The prosecution had deemed the latter photograph pornographic, because it involved "lascivious exhibition of the genitals or pubic area of any person" Under the New Hampshire law, this would define the photo as showing "sexually explicit conduct." They viewed it as evidence of the defendant "trafficking in material involving the sexual exploitation of a minor." Based on this photograph, they asked for a longer sentence; a lower court agreed. The Court of Appeals ruled that the photograph was not pornographic, and that the defendant's sentence should not be extended. The court found that the photograph did not show "sexually explicit conduct" They agreed that the child's pubic area was exposed in the picture. However, they found that:
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| 1999-NOV-17: USA: Supreme Court ruling on public nudity: According to DayWatch: |
"WASHINGTON, D.C. -- The U.S. Supreme Court recently heard arguments over whether a local government's ban on public nudity is constitutional when its target actually appears to be nude dancing. The justices will determine whether the Pennsylvania Supreme Court was correct in refusing to apply any of the opinions of the majority in a 1991 high court ruling upholding an Indiana law that was a general prohibition of public nudity."
Erie PA had passed a public indecency ordinance that has the effect of prohibiting all public nudity. The ordinance was successfully challenged in the state supreme court. The city has appealed the decision to the U.S. Supreme Court. Three conservative Christian groups (Morality in Media, Family Research Council, National Law Center for Children and Families) and 14 state governments filed amica-curia briefs in support of the law. The American Civil Liberties Union, Deja Vu Club of Nashville, TN, Feminists for Free Expression, First Amendment Lawyers Association and several theater organizations filed briefs in opposition to the law. 1
On 2000-MAR-29, the U.S. Supreme Court issued a ruling in the case #98-1161; City of Erie et al. v. Pap's A.M., tdba "Kandyland"). 2 Erie PA had passed an ordinance which outlawed anyone appearing in public in a "state of nudity." The intent of the law was to prohibit nude dancing in commercial establishments, like Kandyland. The owner of Kandlyland sued. The city lost in the Court of Common Pleas, won at the Commonwealth Court, lost again at the Pennsylvania Supreme Court and won in the U.S. Supreme Court. In their ruling, the highest court said that:"...the Pennsylvania Supreme Court construed the preamble to mean that...the ordinance is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing."
Thus the case represented more than simple freedom of expression. The ordinance is judged constitutional because its intent, as stated in the preamble, was combat "certain lewd, immoral activities carried on in public places for profit [which are] are highly detrimental to the public health, safety and welfare..." It is unlikely that this ordinance can be applied to naturist resorts or free beaches.
| 2000-JAN-19: Free beach in Brazil: According to Reuters, in mid-JAN, twenty Rio de Janeiro police officers acted on a recent city directive to crack down on public decency violations. They entered a free beech and required dozens of women to put on their bikini tops. One woman refused to do this and was roughed up and arrested. The action was captured on a video camera; the tape received repeated broadcast on the TV news. The public reacted negatively to the police action: Many more women are now going topless on the beach. Some men have been wearing bikini tops with posters saying "Down with the hypocrisy." |
| 2000-FEB-02: Total ban on naturism in Kansas: Legislation has been proposed in Kansas which would criminalize the practice of naturism. Although the bill is specifically aimed at naturist resorts, it would appear to have general application, even within a family at home. The bill defines "nudism" as, "the act of a person or persons congregating or gathering in the presence of one or more persons with such person's or persons' genitals exposed as a form of social practice". If the law were strictly applied, then sexual activity would be illegal, unless the people involved were married to each other. Changing an infant's diapers could become a criminal act. |
| 2000-MAR-16: Partial ban on naturism in Iowa: A posting to a mailing list mentioned that since 1997, Iowa has had a law on the books which prohibits nudity in any location which has a sales tax license. It was apparently promoted in order to outlaw strip bars. However, it was so broadly worded that it would criminalize a great deal of activity. For example, a book store could not rent a back room to a Wiccan or other Neopagan group if they practiced their rituals skyclad (nude). A church who sold pamphlets also could not allow Neopagan skyclad groups to use their facilities. |
| 2000-MAR-16: Ban on naturist speech in Arkansas: The same posting mentioned a law in Arkansas which, in violation of the U.S. Constitution, criminalizes speech about nudity. A person reading this essay out loud in Arkansas could presumably be prosecuted in that state. Again, Neopagans who practice skyclad could not even talk about their religion within the state. A webmaster anywhere in the world who deals with a web hosting service in Arkansas could find themselves in difficulty if their web site contains any material on naturism or nudity. |
| 2000-JUL-16: Ban on naturism in Brevard County, FL: The Naturist Education Foundation (NEF), Florida Association for Nude Recreation (FANR) and some individuals who are mainly members of Central Florida Naturists, are challenging the constitutionality of: |
"... the infamous Brevard County [FL} ordinance. This template ordinance is the cornerstone of the radical rights' attack on nudity and general and communicative non-sexual nudity...in particular. This template ordinance has been replicated by the hundreds in Florida's counties and cities, and continues to spread across the nation as well." 3
The lawsuit asks that the anti-nudity ordinance be declared unconstitutional. It also seeks damages from the county for violation of individuals' civil rights. The ordinance allows nudity if it is "part of a bona fide live communication, demonstration or performance." The county does not prosecute strip bars or any other adult profit-making entertainment establishment which exhibits erotic nudity. Police only seem to prosecute individual nudists relaxing on the beach. The county has diverted a significant portion of their law enforcement resources away from conventional criminal activity in order to concentrate on trying to eradicate nudism. Sheriff's deputies drive to federal land, miles away from any community, to perform swimsuit patrols.
The plaintiffs seek the freedom to express "Naturist ideals in plays, festivals, political demonstrations, educational demonstrations, educational seminars and live artistic displays which utilize the content of the simply and non-sexually nude human body." The suit (no pun intended) asserts that the existing ordinance is unconstitutional for many reasons. Some are:
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| 2000-JUL-27: Nude statue in California: Adults organizing a tour of the Sacramento Community Center for a Christian home-schooling group were distressed after viewing a nearby statue of Poseidon. They were not disturbed at the fact that a statue of a Greek Pagan god was on display; they took offense to his nakedness. The sculpture had been presented by the Greek government in 1972 to the citizens of Sacramento. "...someone in the home schooling group draped Poseidon with 'a toga or dress pants' in order [to] 'keep the statue from offending their children'." Two other adults attempted to remove the fabric. The Convention and Visitors Bureau were concerned that refusing the Christian group permission to hide Poseidon's genitals "might cost the city a valuable convention." After a meeting of the Convention and Visitors Bureau, the Convention Center and the Metropolitan Arts Council, the group determined that "the city has a clear policy in place. That policy states that no public art will ever be covered..." Future outings of the Christian home schooling group will probably have to re-route their visit to avoid the statue. 4 | ||||||||||||||||||||
| 2000-SEP: Poll about nudism: The
Naturist Education Foundation (NEF) contracted with the Roper-Starch
organization to conduct a national poll of the public's attitudes toward
nude sunbathing. Some results were:
Number of subjects: 1,010. Margin of error: 5% 11 | ||||||||||||||||||||
| 2000-OCT-23: Importing naturist magazines: Naturist magazines often include pictures of naked men
and women of all ages. Thus, they occasionally come under fire with
charges of obscenity and child pornography. This Court of Appeals
decision carefully analyzed a group of nudist magazines, and decided
that they meet none of the three parts of the standard Miller
guidelines on obscenity. A previous court ruling, Miller v. California, 413 U.S.
15 (1973), had specified that three criteria had to all be present in order to
judge a work as obscene:
Further, they found that the magazines have protection under the First Amendment of the U.S. Constitution, since they are promoting a political cause: that of keeping naturism free of government regulations. The District Court had found that an import shipment of 264 French and German nudist magazines were obscene, and thus not protected under the 1st Amendment of the U.S. Constitution. The magazines contained numerous photos of nude males and females of all ages. The Court of Appeals found that the magazines were not obscene:
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"Nudists are members of an alternative community, and the magazines champion nudists' alternative lifestyle, which lifestyle the nudist community may feel is in danger of being curtailed by government regulation... publications dedicated to presenting a visual depiction of an alternative lifestyle, a depiction with a decidedly Utopian flavor, have political value similar to the political value of articles criticizing government regulation of that and other lifestyles." 6
| 2001-FEB-15: Anti-naturist law in New Hampshire: A House bill, NH HB437, was debated in a committee. The bill, as proposed, would have criminalized Parenting magazine, medical texts, etc. The bill has been referred to a House sub-committee. |
| 2001-MAY: WI: Conservative Christians demonstrate at free beach: Wisconsin Christians United (WCU) demonstrated near the state-owned riverfront beach area near Mazomanie WI. The beach is maintained by the Wisconsin Department of Natural Resources (DNR), and has become a popular location for nude bathing. Janet Ovadal, a WCU spokesperson, told Wisconsin Christian News that "DNR officers treated the Christians with contempt throughout the day, making numerous threats of arrest, based on the content of the messages being shared with beachgoers." The WCU regards their protests as successful, because the number of nudists is decreasing. Pastor Ralph Ovadal, leder of the WCU, concluded: "By the grace of God, we have achieved much in this struggle. However, we know that if we were to walk away now, it would soon be business as usual...We cannot and will not walk away from this battle without a total victory. There is too much at stake." 7 |
| 2001-JUL-29: WI: Bill banning nudity on public lands defeated: Republicans attached an amendment to the Wisconsin budget that would have prohibited nudity on public lands administered by the State Department of Natural Resources (DNR). The Democrat-controlled Senate removed the amendment during a joint conference session. |
| 2001-JUL-29: USA: Naturist Action Committee (NAC) fights Children's Online Protection Act (COPA): NAC joined with 19 other plaintiffs under the leadership of the American Civil Liberties Union to challenge this law. COPA requires libraries to censor constitutionally protected online speech. The American Library Association has filed a similar challenge. The two lawsuits have been consolidated by the court and will be heard together. |
| 2002-FEB-20?: ME: Students beat indecency charge: Two female students at the University of Maine went streaking near their school. The police caught them and charged both with indecent conduct. One of the defendants argued that the law applies only to perpetrators who "knowingly expose their genitals in public." One of the women asked the arresting officer if he "saw my genitalia." He was forced to reply that he had not. The judge, a woman, noted that female genitalia are "primarily internal," and thus not visible, dismissed the charges for lack of evidence. |
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2002-JUN-1: WI: Pastor fined for harassing woman at nude beach: Members of the Fundamentalist Christian Christ the King Church regularly frequent the parking lot of the state-run Mazomanie nude beach. According to a Wisconsin Christians United press release, a regular beach-goer, Nancy J Erikson: |
"who delights in mocking Christians doing ministry in the beach parking lot, got out of her car and began to loudly direct obscene language toward Nicolas Bergum, a young Christian man who had offered her a gospel tract. When Pastor Ovadal walked over to the scene, the woman then faced him and engaged in a lewd dance with her tongue hanging out. At that point, Pastor Ovadal preached for several minutes to her and also several minutes to Department of Natural Resources wardens.
To the wardens, he allegedly said:
"How many young men are corrupted by whores who act like this? How many children are destroyed? How many young boys get their start on a path of slavery because of this sort of woman? ...Why don't you tell her she's acting like a whore? Why don't you be a real man? Do you care about the little children? Do you care about the young men? How many young men will be corrupted by the likes of this?...All the poor young men that will be caught up in this woman's trap - Their minds destroyed; their bodies used up.
The wardens insisted that he not use the word "whore" in his preaching." Ovadal was later charged with criminal disorderly conduct, found guilty, and fined $1,000 and court costs. Erickson had asked also that he be given a jail sentence of ninety days. The judge declined, saying that it would be too expensive to administer and it would probably not change pastor Ovadal's behavior. During the sentencing hearing, the judge said to Pastor Ovadal:
"I think you and I have different thoughts on what is preaching...Yes, I called your conduct cruel, savage, truculent...it wasn't preaching....By relying on terms such as 'whore,' 'harlot,' and 'jezebel' to describe Erickson, the Defendant exited the protective confines of the First Amendment and exposed himself to state prosecution."
Ovadal apparently links the nude beach to the sexual abuse of children. He responded:
"I preached the whole counsel of God's Word to Nancy Jo Erickson. I did it for her sake; I did it for the sake of the young men on the beach; I did it for the sake of the children of Mazo beach and the children of the rest of the state, including my new grandson who was just born last week; and most importantly, I did it out of my duty as a minister of the gospel of Jesus Christ. I will not apologize for my preaching, because it would be wrong to apologize for doing right."
Afterwards, Pastor Ovadal and his supporters went to the head office of the Wisconsin Department of Natural Resources -- the group who administers the nude beach. They picketed and distributed a flyer titled "Is the Department of Natural Resources a Protector of Perverts and Child Abusers?" 8
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2003-OCT-7: WI: Pastor's harassment conviction upheld: The state appeals court upheld Ovadal's conviction. He acknowledged that his street preaching and sidewalk evangelizing, was loud and boisterous. But he claimed that it was protected by the First Amendment to the U.S. Constitution. The appeals court decided that resorting to "epithets or personal abuse" is not protected speech. It ruled that: "Ovadal's statements had nothing to do with an exposition of ideas. Instead, they were abusive fighting words and are not protected by the First Amendment." |
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2004-SEP-23: CA: Being naked not a crime: George Moonty Davis, known locally as "The Naked Yoga Guy," has been posing naked in San Francisco in order to promote a book and his lifestyle. Someone lodged a complaint when they saw him near Fisherman's Wharf -- a popular tourist location. Prosecutors decided that the local laws do not bar public nudity, and that they would have a weak case against him, based only on public nuisance bylaws. Debbie Mesioh, spokesperson for the district attorney's office said: "Simply being naked on the street is not a crime in San Francisco." 10 |
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2006-SEP-02: VT: Nude teens: During the early summer, a young woman stripped off her clothes and sat on a park bench in Brattleboro, VT. The practice spread, until a group of teens has recently been disrobing near restaurants, bookstores and galleries. Police Chief John Martin said: "Brattleboro tends to be a laid-back town and pretty accepting of the unusual, but this is really pushing limits. It's clearly to outrage people, it's clearly rebelliousness." Adhi Palar, 19, said: "It's just an act of freedom. We're just doing so because we can. [We] ... do not consider nakedness to be innately sexual or rude and it shouldn't be confined to that." The state has no law against public nudity. Brattleboro is considering passing a bylaw of its own. 12 |
References:
- "Supreme Court hears arguments on nude dancing," Baptist Press, 1999-NOV-17. Available at: http://www.mcjonline.com/news/news3633.htm
- "Opinion of the US Supreme Court," at: http://www.nac.oshkosh.net/Paps_AM_v__Erie/
- "CFN federal first amendment suit breaks free!" at: http://legalfreedom.com/suit1a/
- Bill Lindelof, "City halts Poseidon's flirtation with fashion," Sacramento Bee newspaper, 2000-JUL-27. distributed by the AANEWS group of American Atheists.
- "U.S. Court of Appeals, First Circuit: U.S. v. Alan Lee Amirault," 1999-APR-6. See: http://www.law.emory.edu/1circuit/apr99/98-1353.01a.html
- "U.S. Court of Appeals, Third Circuit: U.S. v. Alessandra's Smile, Inc.," 2000-OCT-23. See: http://vls.law.vill.edu/locator/3d/Oct2000/005124.txt
- "Christians in Wisconsin battle public nude beach," Wichita Chronicle, at: http://www.wichitachronicle.com/nudebch.htm
- "Pastor fined $1,000 for preaching the priceless gospel of Jesus Christ. Sentence to be appealed," Wisconsin Christians United Press Release, at: http://www.wcuweb.com/Documents/2002,5-30.htm
- "Ovadal's beach rant ruled unconstitutional," Associated Press, 2003-OCT-7, at: http://www.madison.com/captimes/news/stories/58320.php
- "Safe haven for naked yoga," Soputh African Broadcasting Corp., 2004-SEP-23, at: http://www.sabcnews.com/
- "Naturist Education Foundation announces results of nationwide Roper poll on skinny-dipping and nude sunbathing," at: http://www.clothesfree.com/
- Lisa Rathke, "Nude Teens Raising Eyebrows in Vermont," Associated Press, 2006-SEP-02, at: http://my.earthlink.net/
Copyright © 1996 to 2006 by Ontario Consultants on
Religious Tolerance
Latest update: 2006-SEP-03
Author: B.A. Robinson
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