City of San Francisco Settles Part of Claims by Nudism Activists

SAN FRANCISCO—Yesterday, plaintiffs in the case challenging San Francisco’s nudity ordinance filed a stipulated dismissal on the part of their claims which formed the basis of an agreement entered by the two sides last month. The settlement includes a one-time payment from the city to the plaintiffs for $20,000, all of which will be given to the nudists’ legal team to cover a portion of the legal fees. Plaintiffs' other claims are slated for appeal to the Ninth Circuit. "We had five or six claims, and the court dismissed all of them except a discriminatory enforcement claim, or a viewpoint discrimination claim," explained plaintiffs' attorney D. Gill Sperlein. "And the idea behind that was, they were enforcing the statute against my clients who were protesting the nudity ban while turning a blind eye to other people who were engaged in political expression favored by the city, in most cases, like the San Francisco Bicycle Coalition—you may have heard of the World Naked Bike Ride?—who use nudity as a means of getting attention for the message, which is one of reducing oil dependence and increasing bicycle use. "So that claim was scheduled to go forward, but we settled that claim for $20,000 so that we could appeal the dismissal of the other claims, which were straight-forward First Amendment claims, primarily saying that our clients, the plaintiffs in the case, use nudity as a way of expressing their message of body freedom and that people should not be ashamed of their bodies, etc., and then also protesting the enactment of the nudity ordinance," Sperlein continued. "So those claims will go forward to the Ninth Circuit, and then we'll figure out if we're going to be back in court on those claims or if the Ninth Circuit will uphold the lower court's ruling that those claims should be dismissed for failure to state a justiciable claim." The genesis of the case was San Francisco Police Code §154, which was introduced by District 8 Supervisor Scott Weiner in late 2011 and was passed on a 6-to-5 vote with significant opposition from five supervisors and the public at large. Prior to its enactment on February 1, 2012, non-sexual nudity was legal in San Francisco except on land under the control of the city's Parks and Recreation Department. The ban has specific exemptions for nudity at permitted fairs, festivals and parades. However, according to protest leader and body freedom activist Gypsy Taub, the SFPD ignored those exceptions and cited plaintiffs even when they were nude at such festivals as the Bay to Breakers and the Haight Street Fair, both of which are covered by the exemption. The SFPD also cited and arrested plaintiffs when their nudity was an integral part of political protests protected by the First Amendment. Taub noted that "a win at the Ninth Circuit could protect the plaintiffs’ future right to use nudity to convey their political message of body freedom, which includes freedom from body shaming." "Judge Chen’s earlier rulings made it clear that the plaintiffs were going to succeed on First and Fourteenth Amendment claims based on viewpoint discrimination," Sperlein stated. "We have settled that claim so that we can focus on the claims that are the most important to the plaintiffs.” The reason the First and Fourteenth Amendment claims are important is that they would allow for injunctive relief preventing the SFPD from interrupting nude protests in the future. "The settlement reached with the defendants provides important funding to continue litigating the important constitutional issues that pervade the ordinance,” noted Lawrence Walters, a Florida-based First Amendment attorney who was brought on to assist with the case given his victories in similar nudity cases in the South. Speaking about the settlement, plaintiff George Davis said, "I hope that the public realizes that this is a win for their own civil liberties, even if you're only a nudist under your clothes. I have made political speeches in the nude in various locations including Times Square. Let's hope that the Ninth Circuit Court aligns itself with the reality-based progressive world in their deliberations." For further information, contact Gypsy Taub by email at gypsytaub@gmail.com, or call her cellphone (510) 543-5274, or home (510) 337-4878.