Thousand Oaks, California
Memo concerning proposed anti-nudity ordinance
TO: CITY COUNCIL
FROM: MARK G. SELLERS, City Attorney
DATE: December 12, 2000
RE: Proposed Ordinance Banning Public Nudity
Issue
Should the City Council enact the attached ordinance which would prohibit most forms of nudity in public places?
Recommendation
Yes, the City Council should introduce and then enact the attached ordinance which complies with the recent holding of the United States Supreme Court in the case of City of Erie v. PAP's A. M., (2000) U. S. , 120 S.Ct. 1382.
Financial Impact
None.
Background
Chapter 16 of Title 5 of the Thousand Oaks Municipal Code (in particular, code sections 5-16.02 and 5-16.05) prohibits the exposure of certain parts of the body by entertainers, waiters and waitresses, as well as, any person participating in a live act or performance, including nude dancing, but it does not prohibit other forms of public nudity.
Nude dancing by an entertainer is a judicially recognized form of speech and an expressive activity conveying an erotic message. Narrow and directed prohibitions of only one form of nudity may not withstand a constitutional challenge. Ordinances which attempt to ban specific forms of expression are constitutionally questionable. See, Schad v. Borough of Mount Ephraim (1981) 452 U.S. 71, 101 S.Ct. 276. (U.S. Supreme Court struck down a zoning law which banned adult theaters city wide). Therefore, any city ordinance which singles out and prohibits a specific form of expression, such as nude dancing by an entertainer, implicates certain first amendment rights. In that situation, the courts are likely to view such a narrowly focused ordinance as a "content-based" restriction.
A "content-based" restriction is subject to the difficult strict scrutiny standard(1) of judicial review, which requires the ordinance to be narrowly written and tailored to regulate only the adverse aspects of that form of expression and to advance and serve a "compelling" and accepted governmental interest.
Recently, in the case of City of Erie v. PAP's A. M., a plurality of the United States Supreme Court found a city ordinance, which banned most forms of "public nudity" city wide (whether that conduct occurred in an adult club, on a city street or at a city beach), to be valid and constitutionally sound. The city ordinance was valid because it focused on conduct (being nude) and not the act or performance (nude dancing) conveying a message. The plurality specifically held that, "[b]eing 'in a state of nudity' is not an inherently expressive condition." City of Erie v. PAP's A. M., (2000) ___ U. S. ___, 120 S.Ct. 1382, 1391.
In determining the appropriate level of judicial scrutiny to test a city ordinance, the Court must decide whether the regulation is related to the suppression of the content of a particular form of expression (ie. prohibits the form of expression because of what is said) or it regulates the conduct alone. See, Texas v. Johnson, (1989) 491 U.S. 397, 403, 109 S.Ct. 2533. "If the governmental purpose in enacting the ordinance is unrelated to such suppression, the ordinance need only satisfy the 'less stringent,' intermediate O'Brien standard." City of Erie, at 1391.
Bans on public nudity, generally characterized as public indecency laws, have been enacted in many states and by hundreds of cities. These laws are designed to prohibit certain conduct, such as the state of being nude in areas open to the public, and are not limited to an expressive activity conveying a message(2).
The rational basis for, or the substantial governmental interest advanced by, these types of ordinances are to avoid the breaches of the peace often associated with nude conduct, the preserving societal order and the protection of a community's notion of morality.
The Erie city council found that public nudity:
"adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.' " City of Erie, at 1392
In Erie, the United States Supreme Court concluded there is "nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech)" such as nude dancing. City of Erie, at 1394.
Whether public nudity occurs as part of an act, a protest, or as part of a life style mannerism, the reaction of the general public and the confrontations, possible breaches of peace, and objections are often the same. The attached ordinance was patterned after the ordinance enacted by the City of Erie and prohibits general public nudity, thus focusing on the "conduct" and not a form of expression or content of the performance such as nude dancing or protesting. The Council should consider some background to support its findings in adopting the ordinance. A City may rely upon studies or reports which identify the problems or secondary effects caused by public nudity, and/or the experiences of other cities and adopt the studies and conclusions of those cities. Some of the secondary effects of public nudity were also mentioned in the cases of Barnes v. Glen Theater, Inc., (1991) 501 U.S. 584, 111 S.Ct. 2456, City of Erie, 120 S.Ct. 1382, and City of Renton v. Playtime Theaters, Inc., (1986) 475 U.S. 41, 106 S. Ct. 925.
The Sheriff's Department reports most of its violations for public nudity are cited as violations of California Penal Code Section 314. However, as the City of Simi Valley recognized in the adoption of its recent ordinance prohibiting public nudity, that particular section requires the nudity to be both "willful" and "lewd" to sustain a violation. Therefore, even though the public nudity may breach the peace, without the requisite sexual context (lewdness), a violation of the Penal Code cannot be supported. The City of Simi Valley specifically identified an on-going situation wherein a citizen routinely walks around his neighborhood completely nude. Despite repeated complaints of public nudity, a prosecution could not be had due to the absence of the necessary sexual context.
Attached is a report of the City of Garden Grove, California (1991) which identifies some of the adverse problems or secondary effects of adult businesses which permitted displays of public nudity. The cities of Simi Valley, Newport Beach, Burbank and Redondo Beach have enacted similar ordinances in order to address these problems.
MARK G. SELLERS
City Attorney
Attachment
CAO:585.30jra:H:COMMON.PubNudity.mem1
1. On the other hand, a "content-neutral" ordinance which only regulates "the time, place and manner" of speech is proper if it is justified as furthering a "substantial" governmental interest and need only be supported by a rational basis. The limits of the police power governmental interest are very broad (such as the prevention of crime, preservation of morality).
2. In City of Erie, the plurality found the ordinance regulating the conduct of being nude to be constitutional even though it may have an incidental impact on the expressive element of nude dancing, since the impact was de minimis and the restriction was no greater than was essential to further the governmental interest. City of Erie, at 1397.
