Public Nudity Ban Is Upheld by 9th Circuit

Public Nudity Ban Is Upheld by 9th Circuit

SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals today upheld San Francisco’s restriction on nudity in public places, ruling the city’s goals of “preventing distraction and offense to citizens not expecting to be confronted with private parts of other persons’ anatomy” justifies restricting nudists' free-speech rights.

With the decision, a 9th Circuit panel dismissed claims made by plaintiffs Oxane “Gypsy” Taub and George Davis arising out of the city’s enforcement of a public nudity ordinance. In their suit, the “body freedom” advocates alleged their First Amendment rights were violated.

One of Taub and Davis’ attorneys, however, said that the fight over nudity rights in San Francisco likely is not over.

“We are meeting with our clients to determine the next step, but I can certainly assure you they are not going away and they will continue to fight the good fight,” industry attorney D. Gill Sperlein told XBIZ.

Sperlein said that he, along with co-counsel Lawrence Walters, were “deeply disappointed” with the result at the 9th Circuit. 

“The court side-stepped certain issues,” Sperlein said. “More troubling, the court stated that we did not provide ‘evidence of a pattern of abuse.’ The problem is that this was an appeal from a dismissal on the pleadings, meaning that there was no opportunity to provide evidence.”

The three-member panel of the 9th Circuit said that it dismissed the case based on an applicable test made in U.S. v. O’Brien — because the San Francisco ordinance is aimed at the conduct itself, rather than at the message conveyed by that conduct.

Even if Taub and Davis’ public nudity at political rallies was entitled to First Amendment protection, they said, the challenged ordinance is a valid, content-neutral regulation.

The court in its ruling said: “First, restricting public nudity falls within San Francisco’s traditional police powers. Second, the ordinance furthers San Francisco’s important and substantial interests in protecting individuals ‘who are unwillingly or unexpectedly exposed’ to public nudity and preventing ‘distractions, obstructions, and crowds that interfere with the safety and free flow of pedestrian and vehicular traffic.’”

“Third, San Francisco’s interest is unrelated to the suppression of free expression, because the ordinance regulates public nudity whether or not it is expressive. Fourth, ‘the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.’

“The ordinance prohibits only exposure of one’s ‘genitals, perineum, or anal region,’ during daily activities in the streets of San Francisco … which is essential to meet the city’s goals of preventing distraction and offense to citizens not expecting to be confronted with such private parts of other persons’ anatomy."

Today’s ruling by the panel was preceded by another lawsuit filed by Taub and Davis over the San Francisco Police Department’s denial of a parade permit for a “nude-in” event. That case ended in a settlement.

SFPD denied the parade permit application on the grounds that the 50 to 100 nude activists expected for the event was not large enough to warrant a parade permit. Nevertheless, the parade took place before San Francisco’s famous Folsom Street Fair after a federal judge issued an emergency opinion the day before the event.

In that case, Sperlein and Walters argued that it would be unconstitutional to allow the SFPD to require a minimum number of people since the permitting ordinance contained no such limitation.

As a result of the settlement in that separate case, the City of San Francisco agreed to pay $15,000 in attorneys’ fees.

View decision

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Michigan Legislators Propose Online Porn Ban

Michigan lawmakers have introduced a bill that would make it illegal to distribute pornography via the internet in the state.

Florida AG Sues Aylo, Segpay Over State AV Law

Florida Attorney General James Uthmeier filed lawsuits against Aylo and Segpay on Monday with the 12th Judicial Circuit Court of Florida for noncompliance with HB3, the state's age verification law.

Colombian Court Sides with Performer Esperanza Goméz Over IG Suspensions

Colombia’s Constitutional Court last week ruled in favor of adult performer Esperanza Gómez in her legal battle against Meta over repeated suspensions of her Instagram account.

Missouri AG Announces Age Verification Rule to Take Effect Nov. 30

Newly appointed Missouri Attorney General Catherine Hanaway announced Friday that the state's recently approved age verification regulation for adult websites will go into effect on Nov. 30.

Aylo, Woodhull Freedom Foundation to Tackle Online Censorship in Virtual Seminar

Aylo and Woodhull Freedom Foundation will co-host a virtual panel addressing online censorship on Sept. 30.

Judge Awards Plaintiffs Over $400K in Attorneys Fees in Derek Hay Civil Case

California Superior Court Judge Gail Killefer has awarded former clients of LA Direct Models over $400,000 in attorneys fees and court costs, to be paid by agency founder Derek Hay.

Former Backpage CEO Carl Ferrer Sentenced to 3 Years Probation, $40,000 Fine

Former Backpage.com CEO Carl Ferrer was sentenced in federal court today to three years' probation and a $40,000 restitution fine for a conspiracy conviction related to money laundering through the defunct website.

Playboy Wins $81 Million Judgment in Chinese Licensing Arbitration

Playboy Inc. was awarded $81 million in damages on Monday by the Hong Kong International Arbitration Centre, in a licensing dispute with former partner New Handong Investment (Guangdong) Co. Ltd.

GirlsDoPorn Owner Michael Pratt Sentenced to 27 Years

Michael Pratt, former owner of the website GirlsDoPorn, has been sentenced to 27 years in federal prison.

Aylo Fined $5 Million as FTC, Utah Settle Safety Practices Complaint

The Federal Trade Commission and the state of Utah on Wednesday settled a complaint against Aylo, requiring the company to pay a $5 million penalty and implement measures to prevent illegal content from appearing on its sites.

Show More