NJ Appeals Court: Bare (Women's) Tits on Beach Are Immoral

TRENTON, N.J.—Two judges of the Superior Court of New Jersey's Appellate Division have affirmed the conviction of Phoenix Feeley, an artist (and de facto free speech activist), for having exposed her breasts on a beach in Spring Lake, N.J., and for later removing the t-shirt provided to her by police and again going bare-chested at an intersection near the police station—after having left the t-shirt hanging on the entrance door to the station. She was fined $750 for the two incidents. This was hardly Feeley's first brush with the "morals police." Although a 1992 New York Appeals Court decision declared that since men had the right to go topless in any public venue in the state, women had the same right, Feeley was nonetheless arrested in 2005 for opening the top of her painter's jumpsuit and letting her breasts hang out on Delancey Street in downtown Manhattan at 1:30 a.m., and held in custody for 12 hours before being released uncharged. She claimed in a lawsuit against the city that she had been pulled from a police car by her hair, forced to undergo a psychiatric evaluation at Bellevue Hospital, and that the cops refused to help her repair her now-damaged jumpsuit. The city agreed to settle the case for $29,000. So Feeley may have assumed she'd have no similar problem in Spring Lake, which is located just 40 miles south of Manhattan, but apparently the area, though just five miles from the resort town of Asbury Park, is actually a hotbed of conservatism. Hence her conviction in Superior Court of two counts of "public nudity" and one of "obstruction" ("of injustice," we presume). The lower court convicted Feeley based on Spring Lake Borough Code §269-3, which holds that, "[I]t shall be unlawful for any person to appear or travel on any street, avenue or road, beach, waterway, alleyway, driveway or any area of private property open to public view in the Borough or appear in any other such place in the Borough in a state of nudity; in an indecent or lewd dress or garment; or make any indecent exposure of his or her person; or urinate in any of the above described places except in public restrooms." Of course, no men have been arrested for "appear[ing] or travel[ing] on any street, avenue or road, beach, waterway, alleyway, driveway or any area of private property open to public view" having "[made] any indecent exposure of his or her person." Trouble is, the appeals court had already ruled in 2001 in State v. Vogt that exposed women's nipples are somehow legally different than exposed male nipples. "In Vogt, we concluded that 'there [wa]s no constitutional right for a woman to appear topless on a public beach,' and '[r]estrictions on the exposure of the female breast are supported by the important governmental interest in safeguarding the public's moral sensibilities, and th[e] ordinance [wa]s substantially related to that interest.' We further noted that distinctions based upon gender must satisfy an 'intermediate level of scrutiny,' i.e., 'the distinction must be justified by an important governmental interest that is substantially accomplished by the challenged discriminatory means.' 'The burden of justifying the classification is on the state, which must show that the claimed justification is "exceedingly persuasive."' We determined that 'the ordinance satisfie[d] both the federal and state tests for equal protection.'" [Citations removed] Yes, we know: It's hard to believe in this day and age that any court whose members didn't include Antonin Scalia could believe that there is an "important governmental interest in safeguarding the public's moral sensibilities," especially in light of the majority holding in Lawrence v. Texas, much less that such "important governmental interest" is "substantially accomplished" by allowing men to go topless while fining and/or jailing women for doing so. Should Feeley decide to appeal this decision to the New Jersey Supreme Court, or to the federal court system, AVN.com will report on such development.