Taub and Davis v. San Francisco, No. 15-16415 (9th Cir.) May 25, 2017.

To plaintiffs the spirit of freedom embraces freedom from clothing, which precipitated a clash between their views and the city’s public nudity ordinance. Plaintiffs have alleged that the enforcement of the ordinance unconstitutionally impinged on their First Amendment rights.

While public nudity is sometimes expressive, it is not always so, the Ninth Circuit observed. The ordinance falls within the city’s traditional police powers, serves the interest of protecting individuals from unwitting exposure, and deters crowd conditions that could impede the ordinary flow of traffic. Moreover, the ordinance concerns conduct, not expression.

Cities have a substantial interest in citizen safety and comfort. San Francisco is not suppressing speech, as is it regulating nudity whether or not expressive. If First Amendment rights were in issue, no such rights would be infringed any more than is needed to promote the public interest. Only exposure of the genitals, perineum, or anal region is prohibited.

Even if public nudity were considered expressive for First Amendment purposes, plaintiffs’ claims concerning prior restraint are unavailing, the court observed, as no citation issued until after public nudity had occurred. Equally importantly, a content neutral permit scheme regulating a public forum is not subject to prior restraint procedural requirements.

The city’s failure to respond to plaintiffs’ parade permit applications was likewise not constitutionally deficient. The First Amendment may be violated where content neutral permit requirements delegate overly broad discretion to decisions makers, but that did not occur here. Adequate guidance was provided to officials.  No pattern of abuse indicating favoritism was shown.

taub v sf

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