114-128. Constitutional support for Naturism.177
114. In a free society such as the United States, one's lifestyle should not be dictated by anyone else
(majority or otherwise), especially if that lifestyle does not infringe on anyone else's rights.
In the words of Justice Sandra Day O'Connor: "Our Constitution is designed to maximize individual
freedom within a framework of ordered liberty." 178
115. The Constitution was, in fact, written to protect the rights of minority points of view. This principle
alone should justify the right to recreate peacefully in the nude without government interference.
Justice William O. Douglas, for a unanimous court in 1972, wrote: "These amenities have dignified the
right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have
encouraged lives of high spirits rather than hushed, suffocating silence." 179
116. The Constitution has been interpreted to protect individual freedoms except where they are overridden
by a "compelling state interest." It is never the responsibility of individuals to justify their freedoms. It is rather the
responsibility of government to justify any restriction of freedom.
Justice Douglas enumerated three levels of rights: "First is the autonomous control over the development
and expression of one's intellect, interests, tastes, and personality. Second is freedom of choice in the basic decisions
of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to
walk, stroll, or loaf." 180 Douglas would permit no state restriction of the first level of freedom; only narrow
restrictions on the second; and in the third, "regulation on a showing of 'compelling state interest.'"
117. Naturism has always claimed that nudity offers "freedom from bodily restraints." Such freedoms may
only be restricted in the case of "compelling state interest;" if none can be shown, the restriction is invalid.
Unfortunately, though the courts have "recognized as a protectible, if minor interest . . . an individual right
concerning one's own appearance and lifestyle," especially where supported by tradition and custom, in the case of
public nudity such protection is not "fundamental" or directly "constitutional" 181 and thus can be overruled or
limited by other considerations, such as environmental concerns182 or "community standards." 183 Often the
reference is to moral principles. These can usually be shown to be "overbroad" by constitutional standards, because
they prohibit innocent behavior (such as skinnydipping) along with behavior of legitimate government concern
(such as lewd conduct).184
118. The Constitution has repeatedly been interpreted to protect the right of individuals to associate with
others of similar philosophy, and also to raise their children in the context of a particular philosophy. This principle
protects the right of nudist families to associate and recreate in the nude.
119. The First Amendment guarantees the right to freedom of expression. This protects every other form of
clothing, and should protect the right not to wear clothing as well.
120. Recent court decisions in Florida, New York, and elsewhere have upheld nudity as part of the
expression of free speech.185
Unfortunately, the courts have consistently concluded that mere nudity per se (for example, nude
sunbathing on a public beach), without being combined with some other protected form of expression, is not
protected as free speech under the first amendment.186 The courts have distinguished between protected First
Amendment beliefs and actual conduct based on those beliefs, arguing that going nude on a beach is "conduct"
rather than merely the natural state of a human being.187
121. The "body language" of the nude human form has extraordinary symbolic and communicative power
which should be protected by the First Amendment.
Examples may be seen in painting, photography, sculpture, drama, cinema, and other visual forms of
communication throughout history.188
122. The Supreme Court has ruled that people can't be forced to communicate ideas they oppose (for
example, saying the Pledge of Allegiance). It has also ruled that clothes can be a protected form of free speech (for
instance, students and public employees had the right to wear black armbands to protest the Vietnam War). It is
unconstitutional to force Naturists to express conformity to ideas of modesty and body shame that they disagree
with, by forcing them to wear swimsuits at the beach.
As attorney Eleanor Fink says, "If people are allowed to wear the clothes of [Nazis], should they not also
be allowed to wear the clothing of the Creator?" 189
123. The courts have thus far permitted the publishers of pornography to express attitudes which are
exploitative of women, on the grounds that this is protected free speech; but it has been unsuitably reluctant to grant
the same protection to the natural expression of body freedom through casual, non-exploitative nudity on the beach.
124. Clothing is both publicly expressive and privately symbolic, connoting identity in a particular cultural
group. Restricting the state of dress of nudists is no less restrictive than prohibiting any other cultural group from
wearing the clothing particular to their group. Preventing nudists from going nude is equivalent to preventing a
person of Scottish descent from wearing the family colors, or preventing a priest from wearing his robes.
125. With the emergence of national organizations promoting nudism as a doctrine, nude recreation may
eventually come to be seen as a protected medium of speech expressing that doctrine, and as an example of
protected free association.190
126. The Ninth Amendment makes it clear that no freedoms shall be denied that are not specifically
prohibited.191 Thus, mere nudity is not illegal except where there are specific laws that prohibit it.
Most laws prohibit only lewd conduct, not nudity per se; and there is in fact no universal legal prohibition
against nudity on public land.
127. Many prohibitions against nudity stem, historically, from the political climate of the early Christian
church.192 Even today, much of the objection to nudism is based on religious principles. The constitutional
separation of church and state should make this an invalid argument.
128. Extensive legal precedent suggests that laws requiring women, but not men, to conceal their breasts
are sexist, discriminatory, and unconstitutional.193
For example, in 1992, the New York Court of Appeals, the state's highest court, unanimously overturned
the conviction of two women found guilty of exposing their breasts in public. The ruling held that the state's anti-nudity
law was intended to apply only to lewd and lascivious behavior, not to "non-commercial, perhaps accidental,
and certainly not lewd, exposure." Herald Price Fahringer, the women's lawyer, said that the ruling meant that
women in New York State could sunbathe topfree or even walk down the street without a top, as long as this was not
done in a lewd manner, or for such purposes as prostitution. Judge Vito Titone pointed out that women sunbathe
topfree in many European countries, adding: "To the extent that many in our society may regard the uncovered
female breast with a prurient interest that is not similarly aroused by the male equivalent, that perception cannot
serve as a justification for different treatment because it is itself a suspect cultural artifact rooted in centuries of
prejudice and bias toward women." 194 This ruling, however, is just one of many statutes and legal precedents
nationwide that uphold the position that breast exposure is not inherently indecent behavior.195
177. For an excellent summary of constitutional law as it applies to naturism, see R. Smith.
178. In Kolender v. Lawson, 461 U.S. 352 (1983).
179. In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Justice Douglas was referring specifically to the
180. In Justice Douglas's concurring opinion on Roe v. Wade, 410 U.S. 113 (1973).
181. See Lacey and Ellington.
182. Williams v. Kleppe, 539 F.2d 803 (1976); Williams v. Hathaway, 400 F.Supp. 122 (Mass., 1975). In this
particular case, the nudists lost to conservation interests at Cape Cod National Seashore. See R. Smith 36-37.
183. Barnes v. Glen Theatre, 111 S.Ct. 2456 (1991)--a decision which has been almost universally criticized. See
Kozlowski, Condra 141-47, Kellam and Lovelace 599-620.
184. See R. Smith 35-36.
185. South Florida Free Beaches v. City of Miami, 734 F.2d 608 (1984); People v. Hollman, 500 N.E.2d 297 (N.Y.
1986); Chapin v. Town of Southampton, 457 F.Supp. 1170 (1978); Williams v. Kleppe, 400 F.Supp. 122 (1975);
Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981); Function Junction v. City of Daytona Beach, 705 F.Supp.
544 (1987); International Food & Beverage Systems v. City of Fort Lauderdale, 794 F.2d 1520 (1986); et al. For
example, State v. Baysinger, 397 N.E.2d 580, 587 (1979) held that "it may be constitutionally required to tolerate or
to allow some nudity as a part of some larger form of expression meriting protection, when the communication of
ideas is involved."
186. South Florida Free Beaches v. City of Miami, 734 F.2d 608 (1984); Chapin v. Town of Southampton, 457
F.Supp. 1170 (1978); Williams v. Kleppe, 539 F.2d 803 (1976); Craft v. Hodel, 683 F.Supp. 289 (1988); McGuire v.
State, 489 So.2d 729 (1986); et al. See Condra 141-47.
187. "There is little in [nude swimmers'] conduct that merits First Amendment protection. While there may be an
element of nonverbal expression inherent in nude bathing, its communicative character is less perceptive than
[display of a flag or an armband in political protests]." Williams v. Hathaway, 400 F.Supp. 122 (Mass., 1975). See
R. Smith 36.
188. See Ableman 48-61, et al.
189. Baxandall, "To Overturn" 55.
190. See Kellam and Lovelace 606, 612-13.
191. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people."
192. Mackenzie 21-24.
193. For two excellent summaries of the arguments for topfree equality, see Craft, and Grueneich.
194. People v. Santorelli, 80 N.Y.2d 875 (1992); Lyall B5; "Big Achievements" 5; et al. See also "Men's, Women's
Breasts Legally the Same" 3; Glazer 128; People v. David, 585 N.Y.S.2d 149 (1991); People v. Price, 33 N.Y.2d
831 (1973); Fahringer 138-40.
195. Theoretically, in 48 states--all but Indiana and, as of 1994, Michigan--"a woman can go to the beach and
remove her blouse in the same way a man can, and not be criminally prosecuted." See Fahringer, 141-43. Twentytwo
states (Alaska, California, Colorado, Idaho, Iowa, Kansas, Kentucky, Maine, Missouri, Montana, Nebraska,
New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Tennessee, Texas,
Utah, and Wisconsin) specifically confine their statutory public exposure prohibitions solely to uncovered genitalia.
Statutes in Louisiana, Arkansas, Arizona, Delaware, Mississippi, and Wyoming prohibit exposure of the breasts only
where there is intent to arouse sexual desire, recklessness, or intent to cause affront or alarm. Statutes in Alabama,
Connecticut, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Ohio,
Pennsylvania, South Carolina, Vermont, Virginia, and Washington prohibit acts that are done with recklessness or
intent for their obscene or alarming nature, and North Carolina, Florida, and West Virginia's statutes are ambiguous
with regard to exposure of the breasts. However, legal precedent nationwide interprets such exposure laws to
exclude breasts. Until New York's law restricting exposure of the breasts was ruled unconstitutional in 1992, it and
Indiana were the only states to specifically outlaw exposure of the breasts per se. See People v. Santorelli, 80
N.Y.2d 875 (1992); State v. Jetter, 599 N.E.2d 733 (Ohio, 1991); People v. David, 585 N.Y.S.2d 149 (1991); State
v. Parenteau, 564 N.E.2d 505 (Ohio, 1990); State v. Crenshaw, 597 P.2d 13 (Hawaii, 1979); State v. Jones, 171
S.E.2d 468 (North Carolina, 1970); et al. Note that local ordinances prohibiting the exposure of breasts may
supersede state laws. Such ordinances have been upheld in federal courts. See, for example, City of Seattle v.
Buchanan (584 P.2d 918, Wash. 1978). There is also a repressive wind blowing in this nation. New laws are being
proposed all over the country, often passing quietly and without review. Michigan, for example, in 1994 passed a
bill permitting counties and localities to enact laws prohibiting mere nudity, and criminalizing the exposure of
female breasts except for breast-feeding (Percey 14). (Breast-feeding, incidentally, has enjoyed new legal support,
with progressive new laws in New York and Florida which have made it illegal to interfere with a breast-feeding
mother, even if her breast is exposed. See Shields 291; "Breast-feeding Mothers" B6.)