SAN FRANCISCO—On Friday, March 15, 2013, the plaintiffs in Hightower v. City and County of San Francisco filed an amended complaint with the U.S. District Court for the Northern District of California challenging San Francisco's nudity ban.
"On this Ides of March, this is a reminder that prior restraints on political speech are, like Caesar, entirely mortal," said Christina A. DiEdoardo, Esq., the attorney for Mitch Hightower, George Davis, Oxana "Gypsy" Taub, Russell Mills, and Russell "Trey" Allen, the plaintiffs in the case.
During oral argument in January, 2013, Ms. DiEdoardo advised the Court that if the measure were permitted to into effect on February 1, the plaintiffs would be subjected to retaliatory measures by the City. The Court dismissed the original complaint, primarily on ripeness grounds, but expressly gave the plaintiffs permission to re-file once the ordinance went into effect.
"As we predicted, the City has wasted no time to repeatedly and illegally arrest my clients in violation of both the ordinance's plain language and the provisions of the California Penal Code," said DiEdoardo.
Violation of the ordinance is supposed to be treated as an infraction. Under California Penal Code section 853.5(a), a police officer is required to offer an individual who is charged with an infraction and who can prove their identity the chance to sign the citation and promise to appear at a later hearing. If the person does that, they cannot be arrested.
However, the City and SFPD repeatedly ignored these requirements at a February 1, 2013 demonstration at City Hall as well as a February 27, 2013 dance performance in the Castro.
Indeed, there appears to be a movement within SFPD to target nudist activists committing civil disobedience. For example, on February 17, Naked Sword filmed a scene for their parody porn called The Cover Up where a nudity ban protest was staged for the film. The nudist activists were invited and participated in the film shoot at Jane Warner Plaza. No arrests were made that day, even though there was plenty of nudity and the police were present.
On March 9, the World Naked Bike Ride took place on the streets of San Francisco. Police were present but no arrests were made and no one was cited, even though WNBR was not a permitted parade.
Apparently, SFPD is specifically targeting events organized by the core body freedom activists who are plaintiffs in the class action lawsuit against the City and arresting the organizers. Besides the 1st Amendment violations, this constitutes violations of equal protection rights guaranteed by the Constitution.
"Since the plain language of the ordinance and the Penal Code are apparently insufficient to compel the City and the SFPD to live up to their responsibilities, we have asked the Hon. Edward M. Chen to issue a temporary restraining order compelling the SFPD to cease these illegal arrests," said DiEdoardo. "In addition, we are asking the Court to set a briefing schedule and hearing date on our request for the court to issue a preliminary injunction against the way the defendants have arbitrarily and capriciously enforced the law."
In the absence of such a restraining order, however, the nudist activists have made it known that they will continue to challenge the ordinance in the streets. On Friday, March 22, at 12 noon, body freedom activists will stage another protest against the nudity ban on San Francisco City Hall steps, facing the Civic Center.
"Please join us in this historic battle against tyranny and oppression!" urged Gypsy Taub. "We are deeply grateful to our sisters and brothers who represent the media and who have played a huge role in publicizing our protests and helping us get the message out to the rest of the world."
Copies of all case documents can be found here.
For more information please contact Gypsy Taub at 510-368-6762 and/or Christina DiEdoardo at 415-839-5098
