Paintings Depicting Nudity Removed from County Exhibition

Botticelli_VenusSan Bernardino County officials removed two paintings by Efron Montiel Jiminez and one by Armando Aleman from the annual National Hispanic Heritage Month exhibition at the County Government Center. The paintings feature nude figures from various angles, and their removal has raised First Amendment issues concerning the display of nudity in public buildings.

The county reportedly invited artists to submit works without stipulation, accepted the three, and then installed them in public space inside Government Center. After receiving complaints from “several visitors and county employees,” county officials removed the paintings and asked the artists to pick them up. A third artist reportedly censored his own paintings, with a sign apparently reading “Censored for a ‘Government’ Building.”

The National Coalition Against Censorship and the ACLU of Southern California have taken issue with the removal of the paintings, reportedly sending a letter to the County Board of Supervisors. The letter alleges that the First Amendment applies to Government Center, as a “public space opened to exhibiting artwork,” and that “government officials cannot arbitrarily impose their prejudices on a curated exhibition.” The letter cites the Ninth Circuit case of Hopper v. City of Pasco for the proposition that, “by opening its display space to expressive activity,” it has “evinced ‘an intent to create a designated public forum.’” In a “designated public form” with First Amendment protections, a court should apply strict scrutiny, requiring a “compelling state interest” and a means “narrowly drawn to achieve that end.”

San Bernardino spokesman David Wert has attempted to distinguish the situation at Government Center, reportedly saying, “The county doesn’t believe it’s censorship because the county isn’t an art gallery. People don’t go to the Government Center to see art.” He goes on to cite personnel rules that “guarantee employees a work environment where they’re not subjected to offensive images” and the usual appeals to the sensitivities of children. He describes the removal of the paintings as an act of “discretion” rather than censorship, but acknowledges, “In retrospect, I wish we had taken a look at the artwork in advance.”

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Update on the San Francisco Anti-Nudity Ordinance


World Naked Bike Ride, San Francisco, 2011

Recall that as we discussed earlier this year, San Francisco (SF) Ordinance 120984 banning public nudity was the subject of a constitutional challenge filed  in federal court before it was even officially adopted.

That challenge was not successful.  In January, the federal district judge issued an order and opinion rejecting the equal protection and First Amendment claims that the statute was facially unconstitutional, although he left open the possibility of an as-applied challenge.  An as-applied challenge may be more likely than not, as the ordinance contains a permitted parade, fair, or festival exemption that may be a springboard for a challenge.  (The ordinance also has an exemption for persons under 5 years old).

The judge’s relatively brief 19 page opinion trod familiar legal ground, finding nudists were not a protected class, that nudity per se is not “inherently expressive,” and that the nudists did not make an argument that the ordinance was not rational.

As Joe Eskenazi writes for SF Weekly, despite the claim of SF’s “urban nudists” to special status because SF had not previously banned nudity, this claim has more political than constitutional traction.  The situation on New York’s Fire Island we previously discussed is an apt comparison.  Another recent nudity debate is occurring in Dallas.  And Chapter 2 of Dressing Constitutionally considers various prosecutions for “indecent exposure” and the gendered nature of that designation, as well as the possibility of nudists as a protected class.

Eskenazi also writes that it seems that the plaintiffs can no longer afford to litigate.  (Indeed, the docket shows the attorney has withdrawn).

Yet while there may not be federal constitutional relief, there may be state constitutional or statutory claims.  Failing that, there is always the SF Board of Supervisors: they can easily repeal or amend the ordinance. 

Dallas Pride Parade Dress Code Enforcement Draws Debate

Cheering_(9178105985)Controversy ensued after organizers of the 30th Annual Alan Ross Texas Freedom Parade (“Dallas Pride”) announced a new effort to enforce state and city public nudity and lewdness laws at the parade. As reported, Michael Doughman, executive director of the Dallas Tavern Guild, organizers of the parade, said, “Just because it’s a day of celebration for our community doesn’t mean we are exempt from the law.” Doughman also reportedly said, referring to Dallas police, “[T]hey’ve looked the other way for years and years and years, but public lewdness and nudity in public [are] not going to continue to be tolerated.”

Dallas police officer and parade security co-commander Jeremy Liebbe reportedly described the effort as a “preventative measure” to address a “trend” in recent years of ignoring laws that had already been in place, but were apparently not rigorously enforced. As Liebbe explained, officers would review and warn marchers in the staging area prior to the parade, and those who had not complied before reaching the parade itself would be “removed from the parade and individuals may be charged with class-B misdemeanor indecent exposure.” If such indecent exposure were to occur in front of a child during the parade route, individuals may have committed felony indecency with a child, a third degree felony. See sections 21.08 and 21.11(a)(2)(A) of the Texas Penal Code. 

400px-Thai_Sunnyboy-Christopher_Street_Day-Berlin_2006While parade organizers and police have presented the new enforcement protocol as “preventative,” critics have charged that, in the words of activist Daniel Cates, “[the] ‘queer’ is effectively being erased from our pride celebration in favor of the most polished, heteronormative representation of our community possible.” According to this view, “family values” and corporate sponsorship have co-opted the meaning of the pride parade, covering its roots in sexual liberation with marriage equality, military service, and dress code enforcement. 

Controversy aside, Dallas Pride occurred with no reported dress code infringements and a large increase in attendance over the 2012 parade. Meanwhile, a man arrested at the 2011 San Diego pride parade has filed a complaint in the United States District Court for the Southern District of California against the City of San Diego, San Diego police officers, and San Diego Pride. He alleges, amongst other causes of action, violation of his 14th Amendment right to equal protection of the laws because of unequal and discriminatory enforcement. His issue? Walters was arrested for public nudity at the parade because of his outfit.

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Ada Calhoun on the People Involved in Dressing Controversies

clothes racksIn her article, “Fashion police are no joke in some cities and schools,” over at Al Jazeera America, journalist Ada Calhoun explores the stories and people behind three controversies: sagging pants, Borgata “babes,” and students’ “I Heart Boobies” breast cancer awareness bracelets.

Ada Calhoun knows her clothes: She’s the co-author of the bestselling Tim Gunn’s Fashion Bible.  But she also knows that attire provokes strong responses from people.

Want to know what the major of Wildwood thinks about the ban on saggy pants?  Or what rapper The Game thinks?  Want to know what the attorney representing the cocktail servers at the Borgata casino thinks should be qualifications for the job rather than “dominatrix outfit” (hint: not spilling drinks might be important)?  Want to hear from the students who pressed for the right to wear the breast cancer awareness bracelets to school?

Take a look at Calhoun’s excellent reporting.

Op-Ed in LA Times on School Dress Codes

Today’s LA Times includes my op-ed  “School Dress Codes: Miniskirt Madness” arguing that “School districts should focus more on educating students and less on enforcing seemingly arbitrary dress rules.”

Of course, it’s not just miniskirts.  After reading the op-ed for other examples, also look for our recent posts on leggings, a seven year old’s “dreadlocks,”  breast-cancer awareness braceletsmale cosmetics, the continuing controversy over confederate flags,  the Second Amendment,  and religious clothing, not to mention problems at graduation for students as well as parents.

And for even more, see Dressing Constitutionally.




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Leggings too Provocative? More on School Dress Codes

Back to school wearing leggings?  Perhaps not.

Highland High School of Salt Lake City, Utah posted several images on facebook and twitter to guide students on how to appropriately wear leggings to school —


As reported, the administration now requires that students cover up between the waist and thigh with another layer of clothing when wearing leggings. Though an outright ban has yet to happen, if the school deems a student’s leggings to be too tight, the student is given sweatpants and a T-Shirt saying “I Love My Administrator.”

Unlike past fashion trends of the youth involving too much skin showing (e.g., mini-skirts, spaghetti straps, etc.), leggings do not directly expose one’s body. However, as Assistant Principal Nelson told reporters, “Sometimes, they can be so tight that there’s really nothing left to the imagination.”

The actual dress code standard requires that clothing be of “modest design” and prohibits “provocative” dress.

Reactions have varied, but several students question the tightness of male athletic uniforms and have also commented that several teachers wear the tightly fitting pants. Others have noted that the school does not ban discrimination against LGBTQ students.

Seemingly unfazed by these points, the administration continues to focus on the trend of young women, finding the form fitting pants just too provocative for an educational environment.


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New York’s New “Topless” Disclosure Law

Known in some circles as the “bikini bar” bill and in other circles as the “Community Full Disclosure Act,” a new law – – – signed without fanfare by New York’s Governor Andrew Cuomo – – – amends the alcoholic beverage control law to require “disclosure” to the “community” about “bikinis.”

The text of NY A03869 adds a new paragraph to the licensing and re-licensing of establishments serving liquor:

(f) A statement indicating the type of establishment to be operated at the premises. Such statement shall indicate the occurrence of topless entertainment and/or exotic dancing whether topless or otherwise, including, but not limited to, pole dancing and lap dancing, at the establishment.

And further provides that this disclosure, unlike other information, cannot be waived.

Sponsored by a legislator from the New York City Borough of Queens, the reported prompt for the new amendment was a lack of knowledge by the community board recommending a liquor license to a “go-go bar.”


The United States Supreme Court has rendered a series of cases, often with fragmented opinions, involving nude and semi-nude dancing, concluding that it is “expressive conduct, although” it “falls only within the outer ambit of the First Amendment’s protection.”   Yet the Court allows this expression to be heavily regulated under the so-called “secondary effects” doctrine, a highly criticized notion that assumes the government is not targeting the dancing or nudity, but instead the “secondary effects” of such expression, such as gambling, prostitution, and other crime.   This complicated legal landscape is further discussed in Chapter 2 of Dressing Constitutionally.

Here, presumably the only requirement is “disclosure,” but of course the type of dress worn by the dancers is meant to be a pertinent fact for those making the recommendation and later decision regarding the establishment’s licensing.

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Borgata Babes: NJ Judge Finds No Discrimination Against Female Casino Workers

Applying state law,  Superior Court of New Jersey Judge Nelson Johnson rejected a sex discrimination claim by employees of the Atlantic City Borgata Hotel-Casino in an opinion in Schiavo v. Marina District Development Company, LLC [d/b/a Borgata]. Granting summary judgment for the employer, Judge Johnson applied a sort of “caveat employee” rationale, essentially reasoning that the women knew the costume, weight, and appearance requirements when they “auditioned” for the job.


“Borgata Babes” as advertised on the casino website

Judge Johnson found that Borgata sought to position itself as a Las Vegas Style hotel-casino, unique in the Atlantic City market, and as an “integral part” of its mission, developed its “Costumed Beverage Servers,” known as “Borgata Babes.”  The women – – – and occasional man – – – are part of the casino’s branding and are advertised as “part fashion model, part beverage server.”  The costume, Judge Johnson tells us, was designed by Zac Posen, a “highly acclaimed fashion designer,” a judge on the television show “Project Runway,” and generally considered a “high end designer” known for “stream-lined and very tailored” couture.   In order to ensure that the “costumed beverage servers”  continued to look good in their attire, Borgata has “Personal Appearance Standards,”(PSA)  including weight restrictions.   At the time of the lawsuit, the PSA mandated that costumed beverage server could not weigh more than 7% of her weight at hiring.

The plaintiffs contended that the PSA was sex discrimination and sex stereotyping and also that PSA was enforced in a discriminatory manner against women but not men.  As to the first claim, Judge Johnson said that the women agreed to be a “babe” – – – a term that “oozes sexual objectification,” and is “at best undignified and at worst degrading.”  He admits that his finding of voluntariness would be disputed by some, including “respected legal scholars” who view American society as “patriarchal,” a term he places in quotes.   Nevertheless, he concludes that because the women “embraced” the label “babe” when they went to work for Borgata, they cannot “shed” it now.

boardwalk-empire-the-birth-high-times-and_1As to discriminatory enforcement, he bemoans the lack of evidence.  He would have liked to have been “presented with a photograph of at least one overweight male” costumed beverage server, especially given the popularity of cameras on phones and the existence of casino surveillance cameras.

Interestingly, Judge Johnson includes a discussion of casino gambling and Atlantic City supporting his finding that the employer’s practices are lawful.  He does not cite any sources, but astute observers might recognize him as the author of a book Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City, published in 2010, and subsequently popularized as a HBO television series.

Of course, this is not the first time that a court has been presented with a sex stereotyping claim by a female casino worker.  In the notorious case of Jespersen v. Harrah’s Operating Company, Inc. , the en banc Ninth Circuit rejected a challenge to a new make-up and grooming standard applied to female bartenders.  Jespersen and similar sex stereotyping based on dress, is discussed in Chapter 3 of Dressing Constitutionally.

Again, while these cases do not directly involve constitutional issues, but statutory ones, they do demonstrate how far – – – or not far – – – courts are willing to go to protect women’s rights of dress and appearance against the requirements of companies who wish to “brand” them.

Naked on the Beach

451px-Fire_Island_Nude_BeachNew Yorkers fond of nude, or even semi-nude, sunbathing, should take care this summer.  

Here is an excerpt of my commentary in the (Albany, NY) Times- Union:

A confluence of two political surges could prove treacherous. First, there is a growing government intolerance for nude sunbathing. For example, Fire Island National Seashore recently announced the park service would begin enforcing the state law prohibiting “exposure of a person.” While recognizing that certain beaches had long been considered clothing optional, the park service stated that public nudity was incompatible with the park’s purposes. It explained that not everyone accepted nudity (“visitor use conflict”).

Second, the continuing concern with protecting children from adult nudity has led to legislative enthusiasm in classifying people as sex offenders. The New York Legislature this session entertained a bill that would create new crimes of “public lewdness,” including a felony that requires registration as a sex offender. People who expose their private parts in public where a child under 14 is “likely to present,” whether or not such a child is actually present, would commit the felony.

Read the rest of the commentary here.

“Naked American Hero” Not Guilty

As reported, frequent flyer John Brennan took a stand against the Transportation Security Administration (“TSA”) when he stripped naked at a Portland airport. He was subsequently arrested and charged with public indecency under Oregon law.NewImage52

At his trial, Brennan argued that his nudity was protected free speech because it was a protest against the TSA’s invasive measures. Brennan said that “as a citizen and supporter of the U.S. Constitution, [he] was doing the right thing.” Indeed, the act of protest earned him internet fame as Portland’s “Naked American Hero.”

Unimpressed, the prosecutor argued that Brennan’s nudity was not protected as free speech because Brennan did not voice his complaints before he stripped nor had he any written message. Moreover, the prosecutor warned that if Brennan prevailed, then “any person naked for any purpose will be able to say it was protected speech.”

The Circuit Court Judge, however, ultimately agreed with Brennan that he was engaging in protected expression.

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