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Constitutionally protected expression, the Huntington Beach council members have come to think that they can't directly ban the specific object of their scorn. Rather, the city council has been asked to
believe that prohibiting all
nudity everywhere will be the quick and painless way to ease the burden of proper city planning and erase the need to enforce the vast array of existing laws that already protect its citizens from crimes, both real and imagined.
Road Map
Following the Byzantine road map set forth by the High Court's Erie v. Pap's decision, the HB City
Council has apparently decided to attempt a so-called "content-neutral" prohibition on all nudity. To do so, they must establish the existence (or at least, probability) of "negative secondary effects," undesirable
derivatives of the thing they seek to ban. Because they have been encouraged to attack general nudity, they feel driven to address the issue of nakedness in contexts far outside those of the adult businesses they wish to ban.
But in attempting to portray the evil secondary effects of all nudity, the City has fallen overboard, tapping into a bizarre vein of hyperbolic hysteria that would almost be
funny if it weren't so offensive. The preamble to the proposed ordinance cites a litany of questionable studies from other cities, many of which claim to draw their
authority from other studies in the same list. The result is an endless children's rhyme of circular references, but it's the same list that has been distributed for years by Community Defense Counsel (an anti-nudity organization
based in Scottsdale, Arizona - formerly known as the National Family Legal Foundation). It's an almost sure bet that no council member has read even one of those studies. In addition to
the aforementioned statistically flawed reports representing themselves to be studies, the drafters of the proposed ordinance have tried to add a little local anecdotal flavor. They write:
"Rioting has occurred after females exposed their breasts before a
crowd in the Pier area of Huntington Beach. Their actions excited
the crowd and triggered mob acts of violence and vandalism."
And in a particularly spectacular non sequitur, they add:
"Nudity in the public park has resulted in numerous arrests for violations
of the California Penal Code related to public fornication and lewd acts.
These crimes have occurred after public exposure of genitalia and in areas
open to the general public.
In seeking to ban all nudity, nowhere do the drafters of the proposed ordinance appear to recognize that nudists and Naturists have Constitutional rights, too. It wasn't
long at all before organizations representing those groups entered the fray. According to the Orange County Register
(August 7, 2000), the American Association for Nude Recreation will "support laws to regulate adult entertainment, but would like exemptions for nudist clubs and resorts from the ordinance."
The Naturist Action Committee has taken a different approach. NAC and AANR
The Naturist Action Committee cooperates on nudist and Naturist issues with the American Association for Nude Recreation, but cooperation does not mean the two organizations
share identical philosophies or that they approach all problems in the same manner. The responses of the two organizations to the proposed Huntington Beach ordinance allow a specific contrast between AANR and NAC, and permit a
better understanding of the differences in their respective priorities. In its letter to the Huntington Beach City Council, AANR defines its goals by pointing out that " the Association's Government Affairs program seeks only to 'maintain the status quo.'" The AANR plea to the Council asks for an exemption for "places set
apart for nudity," but of course, there are no such places presently. A continuation of the status quo
would leave nudists and Naturists no better off than they have been. And an exemption of the sort proposed by AANR would be completely meaningless without the actual existence of any "places set apart."
The Naturist Action Committee does not believe in the mere perpetuation of the status quo. NAC's mission is not only to protect
the rights of Naturists, but to advance them, as well. The position paper of the Naturist Action Committee, authored by NAC Board Member Charles Harris and
delivered personally to the Huntington Beach City Council by NAC Area Representative Marianna Handler, supports that mission. NAC's Position
NAC has not asked for an exemption. Instead, it goes directly to the heart of the matter, pointing out that
"... the Findings erroneously create a direct association between all public nudity, including family-oriented nude activities, and 'sex-oriented
business'. Such an association, which ignores studies which clearly show the contrary, is not only unjustified and untenable, but works incalculable and irreparable harm on the self-image and public image of Naturists and
their children and on the philosophy and values of Naturism."
The NAC document offers a specific means for making the distinction between Naturist activities and adult businesses. And it does so without violating the content-neutral edict of
the U.S. Supreme Court. NAC proposes "[m]odifying ... the proposed ordinance by deleting the words 'knowingly and intentionally' and inserting instead the words 'lewdly and
lasciviously, or for the purpose of pecuniary gain.'" What's Next?
Huntington Beach Deputy City Attorney Sara Lazraus has indicated that her office is favorably
disposed to accept the NAC-proposed changes and to delete the gratuitous negative references to simple nudity. The City Council has scheduled meetings on the proposed ordinance for August 21 and September 5, 2000. The Naturist
Action Committee will be there representing the rights of Naturists. |
