#54: Nudity as Free Speech

This is mark Joseph “young” blog entry #54, on the subject of Nudity as Free Speech.

If the thirteenth century histories are to be believed, it is a practice that has roots back near a thousand years to Lady Godiva, who about two centuries prior purportedly rode her horse down the streets of Coventry clothed only in her long hair, to protest the heavy taxes assessed on the local population by the local Earl of Mercia, Leofric–who happens to have been her husband.  The technique has been used in variations since, and has more recently become a legal issue:  can public nudity be protected as a form of free speech?

Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum
Lady Godiva by John Collier, c. 1897, Herbert Art Gallery and Museum

On April 17th, 2012, a frequent air traveler named John Brennan (not to be confused with the Central Intelligence Agency director of the same name) was stopped at a Transportation Safety Administration (TSA) checkpoint in Portland, Oregon.  He had declined to pass through the scanners which would have produced an image of his naked body under his clothing in favor of a metal detector and pat-down.  However, the pat-down detected nitrates from his clothing–a substance found in some popular explosives, as well as in fertilizer, bacon, some hand lotions, and many other products.  This was certain to be a problem, so Brennan responded, in protest, by stripping naked at the checkpoint in full view of other passengers so that it could be plainly seen that he did not have a bomb.

He was arrested for indecent exposure.  It was a weak case–the applicable indecent exposure law in that part of Oregon, home of the “World Naked Bike Race”, only forbade having sexual contact in public and disrobing “with the intent of arousing sexual desire”, both conditions plainly absent here.  However, Brennan claimed that his act of disrobing was a form of protected free speech.  There is precedent for the notion that actions can be classed as speech or expression under the First Amendment, stemming from a 1971 case, Cohen v. California (403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971)), in which the defendant was convicted of “offensive conduct”, defined as including “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” for wearing a jacket bearing an obscene anti-war slogan to a protest outside a municipal courthouse.  The Supreme Court overturned the conviction, asserting that emotive speech intended to get attention is protected speech.  This subsequently gave rise to Holder v. Humanitarian Law Project (561 U.S. 1, 130 S.Ct. 2705 (2010)), in which actions which were aimed at providing humanitarian aid to terrorist groups were deemed reasonably forbidden in the name of national security, but which classed such actions as freedom of expression and declared that laws which are otherwise about conduct face “more rigorous scrutiny” (greater than the ordinary “intermediate scrutiny” but not as severe as the nearly always fatal “strict scrutiny”) under facts in which the conduct is part of political speech.  The judge in Brennan’s case agreed that his actions were protected political protest, and found him not guilty.

Not willing to let it rest there, the TSA fined Brennan one thousand dollars for “interfering with screening”.  The fine was upheld, although it was reduced by half, in an administrative hearing under the auspices of an “Administrative Law Judge” whose qualifications were that he was a United States Coast Guard officer working for the Department of Homeland Security (DHS).  The extended appeals process for such an “administrative” violation took over a year to reach the head of the department before it could be appealed to a “real” court, the 9th Circuit Federal Court of Appeals.  As of November 11, 2013, an appeal was filed with that court asking that the fine be voided due to several constitutional issues (including the vagueness of TSA regulations), and specifically that his action was constitutionally protected speech.  As recently as October that case was still pending, as the parties await the court’s decision on whether to hear oral arguments or base their decision on the filed papers.

Meanwhile, back in Oregon, Matthew T. Mglej is citing this case in a similar unrelated case.  On May 23rd, 2014, Mglej set up space in front of the federal court building in Portland, posting a few signs, then stripped naked and played the violin to call attention to his cause, a desire for greater transparency in government.  The police arrested him for public indecency (this law makes it “unlawful for any person to expose his or her genitalia while in a public place or place visible from a public place, if the public place is open or available to persons of the opposite sex”) but later released him.  On January 20th, 2015, he filed suit in federal court on a variety of claims including unlawful arrest and violation of his First Amendment right.  This past month U. S. District Judge Michael W. Mosman disagreed, dismissing the suit; Mglej’s nudity was not protected speech, he asserted.

However, as Harvard Constitutional Law Professor Noah Feldman observes (in print as The naked truth about the First Amendment, found online as Protesting Nude in Portland Should Be Protected), the basis for the dismissal is at best dubious.  Mosman asserted that the nudity did not advance the message, that an impartial observer would not have understood how the message and the nudity were connected.  This, as Feldman rightly observes, makes the judge the arbiter of style, as it were, assessing whether Mglej’s speech was effective in achieving its purpose.  The First Amendment does not require that the speaker be articulate, nor give anyone the right to judge whether the message could have been conveyed a different way.  Mglej was attempting to communicate something by his nakedness; does the fact that most people failed to understand what he was attempting to communicate negate his right to attempt to say it?

Besides, part of the message is the medium, and part of the medium is its function in drawing attention to itself and through itself to the message.  Large signs with hot pink lettering do not communicate the message more clearly, they only are more eye-catching; rock bands playing at evangelistic rallies might or might not convey the message as well as the speakers who follow them, but they do draw a crowd–a fact that was not lost on Salvation Army founders William and Catherine Booth, who took brass bands into the streets to draw crowds to hear the message.  Whether or not Mglej’s nakedness clearly conveyed the message of the need for transparency in government, it certainly got the attention of the crowd to hear it.  Absent that detail, it is doubtful that you would be reading about him here, now.  The nudity was as much a part of the message as the violin:  it was the neon sign that caught the attention of passersby to hear the message.

On the other hand, as one city attorney observed, anyone arrested for public nudity could claim that his state of undress was a political protest.  It is easy to imagine that people who subscribe to “nudism” might make it a practice to go about their daily chores completely naked, and assert that they are doing so in protest of the very laws they are violating.  How is that to be resolved?  Can one protest such laws by being naked?

This argument could be pushed to the absurd.  Someone robbing a bank could claim that they are doing so in protest of the laws protecting personal property, or of the unfair advantages accorded to those who own the banks.  Many bombers are already acting in protest, at least as far back as the Viet Nam War protesters, and many rioters become swept up into violent protests that were fundamentally about a reaction against the system.  If breaking one law can be protected speech, can the same be true of all these other laws?

It will be answered that these other crimes are dangerous; people get hurt.  The injury might be physical; it might be economic.  It is clear that we need to protect ourselves from such actions, lest we become their victims, and indeed we need to prevent these actions as much as possible for the sake of others who might be injured by them.  Inherent in that response, though, is the presumption that no one is “really” harmed by public displays of nudity, that those who object are simply being prudish, Victorian, censorial, trying to run the lives of others by requiring them to wear clothing and conform to public decency standards.  The point can be argued.  Those who oppose public nudity believe that there is harm, that for example children should be shielded from seeing naked adults, women should not be forced to look at naked men, and that people exposed to such sights may genuinely be harmed, suffering psychological injury of some type.  It is not a harmless nor a victimless crime.  If it were, it would never have been illegal in the first place–someone thought it was injurious to someone, so laws were passed to prevent it.

You might object that our prudish ancestors had a lot of misguided notions about right and wrong and about conduct that was deemed harmful to others, and that in our enlightened age we can dispense with such nonsense.  It is a point that can be debated–but the fact that it can be debated means that there is at least some merit to the claim that there is real harm; and if there is a basis for a claim of real harm, there is at least potentially reason to make such conduct unlawful.  That in turn pushes us into the quandary:  at what point does harmful conduct become protected self-expression?  If such nudity is in fact harmful to at least some ordinary people, then it ought to be as illegal as robbing banks and bombing buildings, and breaking the law should not be legal merely because it is self-expression.  If it is not harmful to anyone but perhaps a few overly sensitive individuals, then it ought not be illegal and we should find less intrusive means of protecting those weaker citizens who might be impacted by it.

Certainly there is a place for civil disobedience in self-expression, for violating laws in order to make a point.  As we previously noted, the Supreme Court has ruled that burning a cross in the yard of a black family is indeed protected speech, but the perpetrators might still be convicted of arson, trespass, and disorderly conduct.  The individual who chooses civil disobedience as a mode of protest is inherently agreeing to accept the lawful penalty for breaking the law, as part of his choice.  Henry David Thoreau spent a night in jail for refusing to pay a tax that supported the continuation of slavery; he understood that his disobedience to the law meant that he would be imprisoned, and took that as part of his protest.  It is not unreasonable to conclude that Mglej is permitted to make his statement, but that he still must stand trial for violating the law in doing so, just as any protesting bomber would.  That, though, does not seem to be what the courts are saying, and what they are saying seems to be that this particular law does not matter because violating it does not hurt anyone.  We are going to have to settle that issue, one way or the other, and decide whether public nudity should be forbidden or permitted.

Zymurgy’s Law of Evolving Dynamic Systems states, “If you open a can of worms, the only way to re-can them is to use a bigger can.”  We’ve got one of those here, for certain.

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