Nudism & naturism

Conflicts: 1999 to 2000-SEP

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Conflicts over nudism/naturism

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 1^st 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:

bullet "...in determining whether there is an intent to elicit a sexual response, the focus should be on the objective criteria of the photograph's design."

bullet "the statute requires more than mere nudity."

bullet "the genitals are not featured in the center of the composition."

bullet the setting and the girl's pose were not sexually suggestive.

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.

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	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:

It is excessively broad and vague. It requires both the public and law enforcement officials to decide whether a given situation is "bona fide" or "genuine."

Defendants charged under the ordinance are assumed guilty and have to prove that their particular form of nudity is permissible under the ordinance; this is unconstitutional.

The ordinance is unequally applied: commercial, erotic adult entertainment is permitted, but simple naturism is not.

No warrants were issued for some arrests.

The ordinance claims that decent human beings who view nudity are sent into an uncontrollable spiral of crime, insanity and depravity. This is laughably untrue.

The ordinance bans the rituals of certain religious groups. For example, some Wiccans and other Neopagans practice their rituals skyclad (nude). Some Jainist monks also practice ritual nudity.

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:

Among Americans of all ages:

	19% have participated in nude recreation with mixed company.
	80% believe that people should be able to enjoy nude recreation as long as it is in a designated area. This is an increase from 72% in 1983.
	18% personally would consider visiting a clothes-optional resort or nude beach.
	Opinion about setting aside public land for nude recreation was evenly split.

Among younger American adults aged 18 to 34:

	97% believe that people should be able to enjoy nude recreation as long as it is in a designated area.
	34% would consider visiting a clothes-optional resort or nude beach.

Among older American adults aged 45 to 54:

11% would consider visiting a clothes-optional resort or nude beach.

Number of subjects: 1,010. margin of error: ~+mn~3.5% ₁₁

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.
"Naturist Education Foundation announces results of nationwide Roper poll on skinny-dipping and nude sunbathing," at: http://www.clothesfree.com/