Banning Nudity in San Francisco

The Wiener Directive

The naked guys have been called our “canary in the coalmine”… what are we going to ban next? Leatherwear that’s too revealing? Scary drag queens?

–Joshua Alexandr, San Francisco, October 2012

The law might be an ass, but its parents tend to be unwise law makers. A nice, even depressing example of this is the attempt by San Francisco’s Board of Supervisors to make it illegal for anyone over five (why not six, seven or eight?) to “expose his or her genitals, perineum or anal region” in public locations, including places of transit. Knowing, presumably, that they are legislating for the wise, merrily deranged citizens of San Francisco, exceptions are made for various street fairs and events (Folsom Street Fair, and the annual gay pride event, to name but a smidgen). More on point, the supervisors don’t want to fall foul of the First Amendment.

The unfortunately named district supervisor Scott Wiener is at the wheel of this morally indignant measure, reputedly averse to the practice of some nudists to wear “cock rings” and the like. “I don’t think having some guys taking their clothes off and hanging out seven days a week at Castro and Market Street is really what San Francisco is about.”

What an astonishingly ignorant proposition. San Francisco has been a caricature of itself since it began its pretensions as a city of gold gazing across the Pacific, the liberal base for “anything goes”. Any supervisor should be thrilled to know that his constituents are happy to go starkers, however flimsy their philosophical basis for doing so might be. San Francisco is a Rabelaisian epic of a city, where bowels and genitals are courtiers keeping company. It features the fallen, the deranged, the crippled, and the extravagant.

Through the site Change.org, the San Francisco Board of Supervisors has been petitioned by a certain “Mitch Hightower” to stop any measure that would ban public nudity. “This important freedom has contributed to the continued success of many long-running and popular street events including Bay to Breakers, Pride, World Naked Bike Ride, Up Your Alley Street Fair, Nude In Body Freedom Demonstration and Folsom Street Fair.”

Comments by supporters are instructive. Kristina Moseley makes the point that, “My body is not for you to govern.” A certain Christopher Cronin is happy to throw in the commentary of previous thinkers on the body. Michelangelo: “What spirit is so empty and blind, that it cannot recognize the fact that the foot is more notable than the shoe, and the skin more beautiful that the garment with which it is clothed?” Oscar Wilde: “If man was meant to be nude, he would have been born that way.”

Specific interest in this measure seems to have developed because of a growing number of men who have congregated in and about the public plaza in the Castro. For one of SF’s representatives of hedonic charm, McCray Winpsett, “A few lewd exhibitionists are really running it for the rest of us.” Presumably, for a poor choice of cock ring.

For all this silliness, Wiener has revealed his fundamental misunderstanding as to what being naked and being nude is. The nude is a construction, itself a product of spectatorship. That, historically, has tended to be a male gaze, history’s ogling patriarch. Digging deeper in the vaults of antiquity, and the Greek concept of the nude is fundamentally linked with one of integrity, Olympian pomp, pulsing muscles and wielded spears. While the term “integrity” is unlikely to wash in the exhibitionist élan of San Francisco’s events, it is worth mentioning. Reaction is key.

For more down to earth types hanging to the spines of law books to get their fix, it would suffice to simply say that being naked need not itself be “lewd” as stipulated by Penal Code Section 314(1). Since the 1970s, it has been settled in Californian law that “mere nudity” is not “lewd conduct”. In re Smith, 7 Cal.3d 362, 497 P.2d 807 (1972), Mr. Smith was entitled to habeas corpus relief because, in the words of Justice Mosk, the “necessary proof of sexual motivation was not and could not have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual ‘activity’.” Measures to combat indecent exposure are considered more than sufficient given that the Smith case sets the test as to what “lewd” might be – cock ring or no cock ring.

Christina DiEdoardo, a legal eagle retained to challenge the proposal, is forensic in her query into the proposed ordinance. Three questions need to be asked: whether the ordinance targets a “protected activity”; whether existing state laws are sufficient to restrict that behaviour; and whether state legislation already pre-empted the field of regulation of nudity in public places (Law Offices of Christina DiEdoardo, Oct 3). The nudists can win on the first two. The last part, concedes DiEdoardo, is the most problematic one, though the scope of regulation proposed by Wiener is broad and might violate the “pre-emption” premise.

Being naked is a weapon. The flesh bared is a magnified protest, an affirmation, a signal against controlled spaces. Bugger the layers, I want to be free. Tampering with that aspect of it shows a degree of ill health and boredom in the polity. Wiener exemplifies this. “Free expression in the abstract is really nice… until it comes to your neighbourhood.” And the regulator, once unleashed, can never stop. With one ordinance comes another. Exceptions will be made, but others will be removed in the name of annulling “abstract” concepts such as free speech. The passage of the latest ordinance on public nudity – albeit by a narrow margin of 6 votes to 5, is simply the beginning.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached at: bkampmark@gmail.com. Read other articles by Binoy.