S.F. Examiner file photoSan Francisco recently passed a lawsuit that will ban nudity in public. City Attorney Dennis Herrera filed a motion to dismiss a lawsuit that is attempting to block the new law.

City attorney moves to dismiss lawsuit over SF's nude ban

Screaming naked people at City Hall have made sure that everyone noticed the fight over the recently adopted citywide ban on public nudity. Now, the battle is headed to court.

Nudists plan to argue in federal court that the local ban — and in principle, all such bans — will infringe on their First Amendment free-expression rights, among others. But City Attorney Dennis Herrera thinks their case is shaky at best, and he filed a motion Thursday to have it dismissed.

A news release from Herrera’s office said the motion to dismiss “comprehensively dismantles” the basis for nudist claims.

“Public-nudity bans are a longstanding feature of municipal codes throughout the nation, and their constitutionality has been repeatedly affirmed by the courts — including the U.S. Supreme Court,” Herrera said.

In fact, Herrera said, the arguments against the ban that nudists are making based upon the “equal protection” clause of the 14th Amendment to the U.S. Constitution could actually prohibit the new law’s permissible exceptions for nudity, such as during permitted events like the Folsom Street Fair and Zazzle Bay to Breakers.

“The nudism advocates seem to have taken the position that if they can’t be naked everywhere, no one can be naked anywhere,” Herrera said.

Christina DiEdoardo, an attorney for the nudists, said the suit simply points out that because San Francisco will allow nudity in some cases and not in others, it is selectively choosing to quash only unsanctioned expression and will still allow people to be publicly naked, but only if they put on costly permitted events. She contends that the City Attorney’s Office is simply trying to drive up legal costs for her clients, who include some of the naked demonstration
leaders at City Hall.

The nudity ban, sponsored by Supervisor Scott Wiener, will start being enforced Feb. 1 if a judge decides it is constitutional. The ban — which requires coverage of genitals and buttocks, but doesn’t apply to uncovered breasts — carries fines of $100 for a first offense, $200 for a second and $500 or a misdemeanor violation for a third offense within a year.

Even though nudism in Jane Warner Plaza has been a staple in Wiener’s Castro district for years, the supervisor moved to ban the activity after too many complaints surfaced about the so-called “naked guys.”

dschreiber@sfexaminer.com

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