ANALYSIS
IT IS VERY UNLIKELY A CHALLENGE TO THE CONSTITUTIONALITY OF NUDITY LAWS WILL BE SUCCESSFUL BECAUSE SUCH LAWS ARE A VALID
EXERCISE OF STATE POLICE POWER.
It is very unlikely a challenge to the constitutionality of nudity laws will be successful at trial because such laws are
a valid exercise of state police power to regulate for the health, safety and morality of their citizens. Ordinances that
prohibit or seriously restrict nudity are common in nearly all fifty states. Such laws predated the Constitution and have
existed for centuries. Since the states retain all powers traditionally stemming from the sovereign except for those
expressly granted to the federal government under the Constitution, they retain the power to protect the order and morality
of it citizens. Nudity is not an expressly guaranteed constitutional right. Furthermore, the state has power to limit even
guaranteed rights if it serves an important public interest. Courts have routinely found that the public's interest in
morality trumps any implied right to express one's views by not wearing clothes. The following paragraphs will illustrate
nudity laws, beginning with the Supreme Court's justification for their existence.
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ANALYSIS
WE BELIEVE WE CAN DEMONSTRATE THAT SUCH LAWS ARE NOT A VALID EXERCISE OF STATE POLICE POWER.
What health, safety, morality, and order issues are being served with banning nudity? Upon close inspection, we find very
little in the way of objective rationale for forcing people to wear clothes. It's true that governments have been regulating
nudity for centuries, but that alone is not a sufficient reason to continue doing so. If a strong case can be made that such
regulation is pointless or even counterproductive, and the state can give no compelling reason to continue the regulating,
then it must end.
Health -- What health dangers are anti-nudity laws protecting us from? Communicable diseases? Staying warm enough?
Protection during dangerous activities? Sunburn-related skin cancer? Some of these are things we wear clothes to protect
ourselves from. But are anti-nudity laws doing anything to assure we wear the right protective clothing?
Not in the least. Remember that anti-nudity laws only require we cover very small areas of our bodies: pubic area,
buttocks, and for women, breasts. Everything else can be legally exposed under virtually all situations. In other words, if
you just wear a swimsuit, even a Speedo or skimpy bikini, you are legally clothed. You might violate fashion standards or
social custom by wearing a swimsuit everywhere, but not the law.
So how does a swimsuit protect us from communicable diseases when you can rub against all sorts of exposed flesh while
swimming? How does it protect us from cold weather, risky activities, or sunburn? The answer is, it doesn't. Anti-nudity laws
do nothing to force us to dress in ways that are sufficiently protective for various environments. We rely on our own good
sense to dress in appropriately protective ways, and that's how it should be. We don't need the law for that.
But surely there are times when clothing is necessary for good health. Clothing and a hairnet for food preparers.
Sterilized garb for doctors amd surgeons. "No shirt, no shoes, no service" is based on health issues in buildings where
people congregate in close quarters. And wouldn't sitting with your nude butt in the same theater chair someone else just
sat in with their nude butt spread disease?
The answer is, yes, these are times when clothing can promote good health. But these are specialized situations.
What relevance do they have to someone raking leaves in their yard, or walking down the sidewalk, or sitting on their
blanket during a day at the beach? Simply require clothing at those times when health issues are relevant, and leave us alone
the rest of the time.
Or why don't we just make everyone wear an Afghan burqa at all times and be done with it? Because that would be silly
overkill. But isn't requiring clothing at all times, whether there's a health issue or not, also overkill?
The health justification for anti-nudity laws is a sham.
Safety -- Again, what safety issues do anti-nudity laws save us from? Aside from the ones already listed under
Health, they may be trying to protect us from incidental injury like scratches and scrapes. True, clothing can protect
us from such things (imperfectly), but again, anti-nudity laws allow us to walk around in swimsuits, which offer little more
protection than nudity. This can't be the reason.
More likely they're trying to protect us from attack or abuse should someone be excited by our nudity, or protect others
from trouble resulting from a nude individual in public, like car accidents when the driver is gawking. But the truth is
that anti-nudity laws cause this problem, rather than protect us from it. If nudity were a common sight, no one
would be excited or disturbed by it. No one would gawk at it while driving. A man wouldn't become any more sexually
stimulated by a nude attractive woman than by a clothed one. In fact, since everyone knows that women's fashions are
deliberately designed to be sexually stimulating, maybe we need anti-clothes laws to protect our women from excited men, not
anti-nudity laws.
Any safety issue resulting from an excited reaction to nudity that anti-nudity laws supposedly protect us from are in
reality caused by anti-nudity laws, because it's the anti-nudity laws that keep us from becoming comfortable with nudity.
Without those laws, nudity would be a common sight and evoke no special reaction.
Morality -- This is the true reason nudity is outlawed. Health and safety are thrown in just to make things look
good. Nudity is immoral.
Says who? How can the mere existence of the body we are born with be immoral (or in legal jargon: lewd)? How can we say
that the body God or nature created for us to exist in is immoral? Where does this idea come from?
Some say it comes from religion. But that means anti-nudity laws enforce religious beliefs. That's unconstitutional.
Can we find a more secular source for this belief? We can from the belief that nudity is inherently sexual. Therefore if
we walk around nude, we are forcing our sexuality on others. Forcing any form of sex on another person is clearly immoral
and something laws should protect us against. Even we at Family Skinnydippers agree with this.
But there's a deep fallacy in this reasoning. Nudity is not inherently sexual. Our entire website and the very existence
of Family Skinnydippers is geared toward demonstrating that fact. Everything we stand for, everything we've written on these
webpages, testifies against using morality as a rationale for anti-nudity laws.
To merely exist cannot be immoral or illegal. Yet it is in America. Merely existing in our natural state is labeled
sexual, indecent, lewd, etc. No behavior is required. Just existence.
We firmly agree that immoral, lewd behavior should be illegal. If someone becomes nude in front of someone else for
the purpose of shocking, threatening, or sexually enticing that person, as evidenced through their behavior, that
certainly is lewdness and should be illegal. But to call the mere existence of a human body lewd or immoral, even one in view
of another person, is quite insane.
The state claims the right to enact laws to regulate the morality of society. But the definition of morality the state
uses which declares mere nudity immoral is based on no valid rationale.
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A STATE'S POLICE POWER TO REGULATE FOR PUBLIC HEALTH, SAFETY AND MORALS CAN TRUMP FIRST AMENDMENT RIGHTS IF THERE IS A
LEGITIMATE GOVERNMENT INTEREST IN DOING SO.
The Supreme Court has dealt with a myriad of cases challenging the constitutionality of laws that regulate nudity. Usually
these cases have discussed the issue as it relates to nude or sexually explicit dancing as a legitimate business practice and
a constitutionally protected form of free speech. One such case is Barnes v. Glen Theater, Inc., 501 u.S. 560 (1991).
Although the holding in Barnes is a narrow one, and has been subject to some question by other courts, the principles
the Court applies are the same it uses for the majority of free speech cases, especially when nudity laws are involved.
The issue in Barnes was a challenge to the constitutionality of an Indiana indecency statute that outlawed nude
dancing in private establishments. Glen Theater wished to have nude dancers, claiming the First Amendment protected nude
dancing. The Court rejected this argument, stating Indiana was furthering a legitimate state interest by prohibiting nude
dancing. The Court applied the oft-used O'Brien test in coming to this conclusion.
The O'Brien test is one of the accepted tests for determining the constitutionality of free speech regulation. In the case
of United States v. O'Brien, 391 u.S. 367 (1968), O'Brien burned his draft card on the steps of the South Boston
Courthouse as a demonstration of protest. In doing so he violated a statute that forbid the destruction of such property. He
claimed his actions were "symbolic speech" protected by the First Amendment. The Court stated:
"[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To
characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive
terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we
think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the
Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest." O'Brien, 391 u.S. at 376-77 (footnotes omitted, cited in
Barnes, 501 u.S. at 567.)
To reiterate, a governmental regulation on free speech is sufficiently justified if: (1) it is within the constitutional
power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is
unrelated to the suppression of free expression; (4) the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest. The Court upheld the Indiana statute as a legitimate exercise
of state police power. It looked to common law, similar statutes in 47 other states, and the explicit language of the statute
to limit free expression, but to protect order and morality.
Furthermore, the Barnes Court affirmed that the traditional police power of the states includes the authority to
provide for the moral protection of its citizens by and through legislation. Id. at 569. They cited to Paris Adult
Theater I v. Slaton, 413 u.S. 49 (1973) where they "implicitly accepted that a legislature could legitimately act on such
a conclusion to protect 'the social interest in order and morality,' " citing Roth v. United States, 354 U.S. 476, 485
(1957). Finally, they cited to Bowers v. Hardwick, 478 u.S. 186, 196 (1986), in which the Court said:
"The law, however, is constantly based on notions of morality, and if all laws representing essentially moral
choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."
Finally, the Court explained that states have this legislative power, despite a citizen's right to free expression,
because any activity could be described as expressive conduct. States need to have the power to regulate for the welfare of
their citizens and the citizens need to have the right to express themselves. It is usually up to the courts to determine
when one or the other extends too far.
In conclusion, the Supreme Court has upheld the traditional police powers of the states to regulate for the health,
welfare and safety of their citizens. If such regulation comes in conflict with constitutional rights, the state must show a
rational basis for the regulation, and that the regulation was not done in specific effort to suppress speech, but to promote
the general welfare. If states follow such guidelines in passing regulatory laws, they will be upheld as constitutional.
Historically, governmental prohibition of nudity has been the norm. As such, it falls under a traditional promotion of the
general welfare and therefore makes it very unlikely to succeed as a constitutional challenge at trial.
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WHAT IS THE LEGITIMATE GOVERNMENT INTEREST THE STATE HAS IN REGULATING NUDITY? IT CLAIMS REASONS OF HEALTH,
SAFETY, AND MORALITY, BUT THESE ARE JUST BUZZ WORDS. EXACTLY HOW DO ANTI-NUDITY LAWS PROTECT OUR HEALTH AND SAFETY WHEN THEY
ONLY REQUIRE AS MUCH COVERAGE OF THE BODY AS A SKIMPY SWIMSUIT OFFERS? EXACTLY HOW DOES CHASTE NUDITY NEGATIVELY
IMPACT THE MORAL CLIMATE OF SOCIETY?
Notice how the legal example the law firm gives is about sexualized nudity in a business environment. We don't
argue with the state's right to regulate sexualized nudity. But is gardening nude in one's own yard a sexual issue
or a mere issue of comfort? Is it a sexual act to choose to skinnydip because swimsuits are uncomfortable things to wear
while swimming? If the nudity involved is nonsexual, where's the moral issue?
No one would put up with a dress code written into the law. The government has no compelling interest in telling us what
to wear, therefore has no right to dictate to us what we wear. That should include choosing to wear nothing at all. If our
behavior while nude is lewd, then punish the behavior. But remember, a person can be guilty of lewd acts when
clothed as much as when nude. It's the behavior that makes the difference. Mere nudity itself is not lewd.
We're not quite sure how to respond to this entire section of the law firm's analysis. We agree with them. The state
should have the right to regulate businesses which display sexualized nudity for the purpose of arousing people. But
what on earth does that have to do with someone mowing their lawn naked on a hot day so they can be cooler and so they can
hop right into the shower afterwards without having to mess with their dirty clothes? What does it have to do with someone
skinnydipping because they believe swimsuits are an idiotic invention and hate the feel of a soggy clump of cloth hanging
from their bodies?
Is society truly incapable of seeing the difference between these two kinds of nudity?
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THE FACT THAT NUDITY IS CODIFIED AS LEWD CONDUCT IN NEARLY ALL FIFTY STATES DEMONSTATES THE CONSTITUTIONALITY OF SUCH
LAWS.
Further evidence of the constitutionality of laws against nudity in public is the fact that nearly all fifty states have
them in one form or another. While some states are more relaxed than others in particular circumstances due to individual
traditions, history, and location, nearly all states regulate nudity in some form.
For example, Florida and California allow nudity on certain beaches where it has traditionally been allowed
[David Brahm, The Rec. Nude Legal FAQ, (last modified Feb.
15, 2000)]. Conversely, Massachusetts has declared nudity expressly illegal on Cape Cod National Seashore [Id.] In
analyzing the statutes of individual states, including Utah, it is common for the state to have a more general lewdness law
that outlaws some forms of nudity [see Utah Code Ann. § 76-9-702.5 (2002)]. States that allow nudity in certain areas
provide codified, specific exceptions [see CAL. CODE REGs. tit. 14, § 4322 (2000)]. However, municipalities have often
maintained their own lewdness laws that are often stricter than the given state law. These more stringent, localized
ordinances have been upheld as long as they meet the same standards as state law [see Mini Spas, Inc. v. South Salt Lake
City Corp., 810 F.2d 939 (l0th Cir. 1987)]. Such widespread regulation is a good indicator of the constitutionality of
such laws given there is no express right to not wear clothes granted in the constitution.
If a right is not expressly granted in the constitution, it is not a guaranteed right. As such, the state, or its
municipalities, can regulate actions related to that right. When the disputed right comes under the shadow of a guaranteed
right, like nudity as a form of symbolic free speech protected under the First Amendment, the state needs to have a
legitimate governmental interest that is furthered by limiting such actions in order for such regulation to be allowed. In
other words, the reason for the state's legislation must be founded on a recognized govnermental power, but the state can
still do it.
In the case of public nudity and its classification as lewd conduct, states have traditionally held such acts to be
against established moral principles. As we have already discussed, a state is free to make moral based laws because all laws
are moral determinations in one form or another. In considering the constitutionality of regulations that limit implied
constitutional rights, the Supreme Court often looks to how other states have addressed the issue, as well as the history of
the issue and the discerned intent of the framers. Under all these lights, a challenge to nudity laws would fail. Most all
states regulate nudity. It is a regulation that has been recognized for centuries. It is highly unlikely the framers ever
considered the right to not wear clothes as something that should be guaranteed by the Constitution. Therefore, it is very
unlikely a constitutional challenge to nudity laws will succeed at trial.
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THE FACT IS, NUDITY IS NOT CODIFIED AS LEWD CONDUCT IN NEARLY ALL FIFTY STATES. PRECIOUS FEW STATES DEFINE MERE
NUDITY AS LEWDNESS. (UTAH, TO ITS SHAME, IS ONE OF THEM.) SOME SORT OF LEWD BEHAVIOR OR INTENT MUST ACCOMPANY THE NUDITY.
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CONCLUSION
States, and their recognized municipalities, have the power to regulate for the health, safety, and moral welfare of their
citizens. Each state can do this as their respective legislature sees fit as long as their laws do not restrict citizen
rights guaranteed by the Constitution. Even those rights not guaranteed by the Constitution, but related to them can only be
regulated by a state if they have a rational basis for doing so.
This general police power originates from the old common law system. Essentially, at the creation of the Constitution the
states retained all rights of power traditionally recognized as belonging to the Crown except those stipulated in the
Constitution. Therefore, states have the power to pass especially "moral" laws such as those involving nudity, distribution
of alcohol, spitting on the sidewalk, etc. Laws prohibiting nudity have existed for centuries and are currently enforced in
nearly every state.
Since the courts have long recognized a state's power to enact lewdness laws prohibiting nudity, it is very unlikely
your challenge to the constitutionality of such laws would be successful at trial. States have the authority to enact laws to
protect the morality of their citizens.
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CONCLUSION
Governments do indeed have the power to regulate for the health, safety, and moral welfare of their citizens, as long as
they do not restrict the Constitutional rights of its citizens. They can even regulate some rights when they have a rational
basis for doing so.
But none of these things apply to mere nudity. Health and safety issues are not helped at all by current anti-nudity
laws, because the limited amount of covering up that current anti-nudity laws force on us don't protect our health and
safety any better than nudity, except in special circumstances. Laws governing nudity should address those circumstances
specifically, and not take the lazy, ineffective, and rights-restricting route of forcing us at all times to cover our
genitals, buttocks, and female breasts. Perhaps we should legally force people to dress in ways that cover all of
them at all times, like Victorian clothing or Afghan burqas. Then the health and safety issues would make more sense. But
American citizens wouldn't put up with that for a moment.
We believe that anti-nudity laws actually harm the health and safety of people. They create body shame, poor self-image,
a reluctance to allow medical personnel to examine ourselves, poor hygiene in schools, eating disorders. They cause
ignorance of the very bodies we are required to live in our entire lives. We fear our bodies and their natural life-cycle
changes. We enter marriages ignorant of the bodies of the opposite sex, then wonder why there is so much sexual dysfunction.
We waste millions of dollars on cosmetic surgery because we fear the natural changes of our bodies. Mothers refuse to
breastfeed their babies, are forced to undergo inexcusable inconvenience to do so, or ruin their ability to breastfeed with
breast enhancement surgery, all because we have unnaturally sexualized the female breast, to our shame.
Anti-nudity laws cause a dysfunctional fascination with the human body, especially among those who are most ill-equipped
to handle it: adolescents undergoing puberty. How many billions of dollars are wasted just to satisfy the urge to see naked
women? Why does a nude person walking down the street cause car accidents? Why do kids play doctor or sneak peeks at
pornography? Because everyone has a healthy curiosity about human bodies, a curiosity that they will
satisfy one way or another. How many teen pregnancies or transmissions of sexual diseases started out as mere curiosity in
a game of "I'll show you mine if you show me yours"? If we criminalize normal, wholesome ways to satisfy this curiosity,
like letting people garden or swim or hike or jog or just hang around nude, then people will find abnormal, unwholesome
ways to satisfy it.
Into this mix of abnormal curiosity we throw sexual arousal, because our society trains us to see nudity only in a sexual
context. If nudity is there, then sex is there. So when we satisfy our curiosity about human bodies, we are being sexual.
From that springs guilt, shame, and on occasion, dysfunctional, even predatory, sexual behavior. All because we are
disallowed by law to satisfy our wholesome desire for an education on the bodies we live in and interact with.
Anti-nudity laws exist to promote health and safety? Give us a break!
Moral issues are either based on religious beliefs, which make them unconstitutional to enforce by law, or on the
utterly false assumption that nudity is automatically sexual. Nudity is not sexual unless we choose to make it so
by our intent and behavior. This is not arguable. Thousands upon thousands upon thousands of people (including ourselves)
know from our own personal experiences that it is not arguable. We know that chaste, nonsexual nudity exists like
we know the sky is blue. We know from personal experience.
Therefore the morality excuse cannot be used. If nonsexual nudity exists (and it does), then sweeping anti-nudity laws based on moral
issues are based on a lie.
Claiming that anti-nudity laws keep order in society seems to have a more substantial rationale behind it than claiming moral reasons,
but this does not bear up under scrutiny. It's true, in our current social climate, that a nude person in public
does cause a disturbance. But the law causes the disturbance to happen, rather than protecting us from it. No tribe
in Africa or the Amazon forest with a tradition of casual nudity ever has a "disturbance of the peace" when
someone appears nude in public, because it's a common sight. If nudity were a common sight in American society, it
wouldn't cause the slightest disturbance either.
Why isn't nudity a common sight in America? Because it's illegal. People will be arrested and go to jail if they appear
nude in public. It's a vicious circle. The only reason the law needs to protect the order of society from nudity is because
the law, by banning nudity, causes the excited reaction to a nude person in public. It would be the same if we
passed a law making the sight of women's faces in public illegal. (Such laws do exist in the world!) In such a legal
environment, a woman exposing her face would indeed cause a public disturbance. But whose fault is that? The woman's face,
or the law?
Yes, if we made public nudity legal, there would be an adjustment period. That's inevitable. But that's true any time an
unfair legal tradition is changed. Early Americans fought a revolutionary war to change a venerable tradition of government
that they believed was violating their rights. An entire civil war resulted from the effort to ban the longstanding legal
precedent of allowing slavery--a precedent which, by the way, not only predated the Constiution, but was codified into the Constitution.
Riots and lynchings and deaths occurred during the adjustment period in the 1960s as we
wiped out institutional racism. The fact that there's an adjustment period is no excuse to continue to enforce an
irrational, unsupportable intrusion into personal rights, even if that intrusion, like slavery, has a lengthy precedent of
legal acceptance throughout the history of humankind.
Several things have been enforced by law long before the Constitution was written, yet we modern Americans came to realize
that such laws are violations of basic rights and needed to be abolished. Slavery was a big one. Racism generally was another. The
second-class status of women as citizens--who couldn't even vote--was another. All these things predated the Constitution, yet we abolished
them because as a society we matured enough to realize they were unjust laws that violated basic rights.
At Family Skinnydippers, we insist that anti-nudity laws fall under this category. There is no compelling reason for the state
to ban mere nudity. All the reasons given to support the ban are invalid reasons.
Let's be honest. The true reason that nudity is illegal is because people don't like it, and for no other reason. People
have been emotionally conditioned their whole lives to fear nudity. There is no rational reason behind it. It's just
brainwashing. You fear seeing nudity, and you fear being seen nude. But what's to fear? They're just bodies--our bodies.
They are bodies just like dog bodies and cat bodies and goldfish bodies and deer bodies and giraffe bodies and elephant
bodies and lion and tiger and bear bodies. We don't fear the sight of those naked bodies (as long as some of them are
behind bars). So why do we fear the sight of our own bodies?
Only a lifetime of intense brainwashing can do that to us, because there is no rational reason to fear our bodies.
Religion and society and the legal system have constructed an impressive house of cards to justify the irrational fear so
we don't look like complete idiots when we scream at the sight of a naked body or when someone sees us naked. But the fact
is it's an act of insanity to react that way, and the house of cards tumbles when the wind of rationality strikes it.
Nudity is illegal because you don't like it, period. But why should someone be forced to do something that they don't
believe in (e.g., hide their bodies in shame) and is completely harmless to you, just because you don't like it? Some of us
don't like the sight of a pierced tongue. It's crude and disgusting and offends us. Should it therefore be illegal?
Certainly not, and neither should harmless nudity be illegal just because you don't like it.
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