Judge Blasts Giuliani's "Relentless" Attacks on First Amendment

The case against a photographer taking nudes in New York has prompted a federal judge to blast the Giuliani Administration's "relentless onslaught of First Amendment litigation," saying it puts courts in danger of performing "crucial government functions".

Judge Guido Calabresi, who sits on the 2nd U.S. Circuit Court of Appeals, commented in a 63-page ruling on the Giuliani Administration's bid to block Spencer Tunick from taking nude photographs in the city. He's been arrested five times for staging nude photographs on streets and bridges in Manhattan.

Calabresi also observed, however, that there have been eighteen "prominent cases" in which his court or lower federal courts have either blocked the city temporarily or thrown out one of its actions as unconstitutional on First Amendment grounds. "We would be ostriches," Calabresi wrote, "if we failed to take judicial notice of the heavy stream of First Amendment litigation generated by New York City in recent years. As a result of this relentless onslaught of First Amendment litigation, the federal courts have, to a considerable extent, been drafted into the role of local licensors for the city of New York.

"(I)n the current and rather remarkable state of affairs in New York City," he continued, "there is an all too clear danger that the courts, instead of merely interpreting and defending federal rights, may cross the line and become, in effect, an agency that performs crucial local government function."

The ruling sent the Tunick case back to a state court to determine whether or not the nude photographs would violate state law against public nudity. Calabresi's opinion said "one need not contemplate why" a nude production of Hamlet could be staged in Grand Central Station while Tunick's photography should be banned no matter when or where it happens.

Calabresi's colleage, Judge Robert Sack, said the city could only stop people from undressing in public "with a clear law administered constitutionally."

New York Mayor Rudolph Giuliani is currently running as the Republican hopeful for the U.S. Senate seat being vacated by Daniel Patrick Moynihan, a Democrat. Giuliani's Democratic opponent is First Lady Hillary Rodham Clinton.

A Giuliani spokesman told the Associated Press the mayor only wants to stop one group's free speech rights from impinging those of others, adding that there was "too much acceptance of these glib comments" that Giuliani "crushes people's First Amendment rights."