Amicus Curiae Brief — Erie v. Pap's AM

- .

| Supreme Court, U.S.

| ( -) | FILED

y |

sep 30 099

No. 98-1161

| LERK |

IN THE SUPREME COURT OF THE UNITEDISTATES”

, October Term, 1999

City of Erie,

Petitioner,

Vv.

Pap’s A.M.,

Respondent

On Writ of Certiorari to the Supreme Court of Pennsylvania

BRIEF OF THE AMERICAN ASSOCIATION FOR

NUDE RECREATION AMICUS CURIAE IN SUPPORT

OF THE RESPONDENT

Robert T. Page

Counsel of Record

517 East Sixteenth Avenue

Denver, Colorado 80203

(303) 830-2522

Enrich Schuttauf

Government Affairs Coordinator

American Association for Nude Recreation

1703 North Main Street

Kissimmee, FL 34744-3396

Attorneys for Amicus Curiae

No. 98-1161

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1999

City of Erie,

Petitioner,

Respondent

On Writ of Certiorari to the Supreme Court of Pennsylvania

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE.

The American Association for Nude Recreation, a

Florida not for profit corporation, respectfully moves this

Honorable Court for leave, pursuant to Rule 37, to file the

attached brief amicus curiae in support of the Respondent.

Permission of the parties has been sought and counsel of

record for the Petitioner, City of Erie, has respectfully

declined such permission. Counsel for Respondent consented.

The interest of your amicus is more fully developed in

that portion of our tendered brief devoted to that subject.

The Association has more than fifty thousand members who

are family social nudists, and a more than two hundred thirty

nudist affiliated clubs in North America, of which nine are in

Pennsylvania. It is our concern that ordinances such the one

at issue in this case could, because of broad, generally

applicable prohibitions on public nudity, substantially interfere

with the inoffensive practice of social nudism in appropriate

venues. Thus, your amicus believes it has information and

views on the issues in this case which this Court may find

useful to hear

Respectfully submitted,

(bas

Robert T. Page

Counsel of Record

517 East 16th Avenue

Denver, Colorado 80203

(303) 830 2522

Dated September 30, 1999.

**

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... be .. iv

INTEREST OF THE AMICUS CURIAE .......... od

SUMMARY OF THE ARGUMENT ................ 7

ARGUMENT oa: SS ere

I ERIE’S ORDINANCE IS SUBSTANTIALLY OVER

o BROAD IN THAT IT REACHES NUDE ACTIVITY

WHICH PRODUCES NO ADVERSE SECONDARY

EEE ee OP rr ieee eka 8

[1 ORDINANCES SUCH AS ERIE’S

SUBSTANTIALLY INVADE PROTECTED

LIBERTY AND PRIVACY INTERESTS OF

SOCIAL NUDISTS. ee vee Perr

Eg a RE a eee ee ae

CERTIFICATE OF SERVICE ................-... &@

TABLE OF AUTHORITIES

Cases

Barnes v. Glen Theatre, 501 U.S. 560 (1991) ...... passem

Bledsoe v. City of Jacksonville Beach, 20 F. Supp. 24 1317

Gib He, GO. so kcksciaceae tens 10

Bruns v. Pomerleau, 3\9 F. Supp. 58 (D. Md. 1970) ... 16

Clark v. Community for Creative Non-Violence,

i Es Ee es 14

Clebourne v. City of Clebourne Living Center,

oo eee 18

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .. 9

Freedman v. Maryland, 380 U.S. 51 (1965) .......... 1]

Forsyth County v. Nationalist Movement,

— fF BO eae eee 11

Gibson v. Florida Legislative Committee,

Pe ae: SED vse S dete ns uacacees 18

Griswold v. Connecticut, 381 U.S. 479 (1965) ........ l4

In re Smith, 7 Cal. 3d 362, 497 P. 2d 807 (1972)....... 15

J&B Entertainment v. City of Jackson, 150 F. 3d 362

Rk BP ro er eee 5

iv

Jenkins v. Georgia, 418 U.S. 152 (1974)... 2.6... 6 ee 9

Le Roi v. Sidley, | Sid. 168, 82 E. R. 1036 (1663) ..... 18

Massachusetts v. Oakes, 491 U.S. 576 (1989) .......... 9

NAACP v. Alabama, 357 U.S. 449 (1958) .........5.5. 18

National Endowment for the Arts v. Finley,

SO. ED ki deccnccvccacceses 13

New York v. Ferber, 458 U.S. 747 (1987) ... 2... 66445. 9

People v. Gilbert, 72 Misc. 2d 795, 339 N.Y.S. 2d 743

a, P< does nce bodalesshehadace 15

Pierce v. Society of Sisters, 268 U.S. 510(1925) ...... 18

Planned Parenthood of Southeastern Pennsylvania v. Casey,

Pe ED od nveecncuceuWackes 18

Police Department of Chicago v. losley,

Se SE Sac nck ea teenecpnngsa 14

Roberts v. Clement,

252 F. Supp. 835 (E.D. Tenn.1966) .. 3, 13, 16

Sierra Club v. Morton, 405 U.S. 727 (1972) .......... 18

Southeastern Promotions, Lid. v. Conrad,

I ee en dae 9

Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958) .. 9

Texas v. Johnson, 491 U.S. 397 (1989) ©... 0. eee l4

Vv

Triplette Grille, Inc. v. City of Akron, 40 F. 34 129

(6th Cir. 1994)... Ae ike 10

United States v. A Naked Person, 841 F. Supp. 1153

CR We Pee ws 606 bb eked 0haceesSs 15

Williams v. Hathaway, 400 F. Supp. 122 (D Mass. 1975)

aff'd sub nom. Williams v. Kleppe, 539 F. 2d

803 (ist. Cir. 1976) es 18

Constitutions, Statutes and Rules

ORANGE COUNTY (Fla. )PUBLIC NUDITY ORDINANCE,

& — Baek taal by OE

PA. Const. STAT ANN secs. 3127, 5503, $901 14

Other Sources

ABVALIL Mope. Pan uw CODE . ,

Gallup Organization, Inc., Most Americans Approve of Nude

Recreation (Princeton, N.J.. June, 1983) ..... 4

Kellum and Lovelace, 70 Bare or Not to Bare: The

Constitutionality of Local Ordinances Banning

Nude Sunbathing, 20 U. Rich. L. Rev. 589

(1986). ue twe tes Late hints oO

Layng, “Confronting the Public Nudity Taboo,” USA Today

Magazine/ March 1998 p.24 ........... ie

vi

LEN MUNSIL and JAMES MUELLER, HOW TO LEGALLY Stop

NUDE DANCING IN YOUR COMMUNITY

B-11(Natl. Family Legal Fndn. 1995) ... 13

ROSCOE PERKINS, PERKINS ON CRIMINAL LAW 336-37

(Foundation Press, 1957). ............ See

Pilla, “Battle Over Beach Nudity May Hurt State Tourism,”

Wall Street Journal, July 19, 1995 (reprint)... 11

PLUTARCH, LIVES OF THE NOBLE GRECIANS AND ROMANS

59-60 (Mod. Lib. Ed 1967)........... + ae

RICHARD POSNER, SEX AND REASON 357

(Harvard 1992). at | 9.14

RICHARD POSNER AND KATHERYN SILBAUGH, A GUIDE TO

AMERICA’S SEX LAWS (U. Chicago 1996 ) 15

“House to Consider Nudity Bill This Week: Legislation Could

Make Outlaws of Nursing Mothers”

I BED cs ra LC Give Wewe v'b-0'<i 5

USA Today Nation, 8/27/99 (electronic edition). ay

vil

BRIEF OF THE AMERICAN ASSOCIATION FOR

NUDE RECREATION IN SUPPORT OF THI

RESPONDENT

INTEREST OF THE AMICUS CURIAE'

The American Association for Nude Recreation

(“AANR”), formerly known as the American Sunbathing

Association, is a Florida not for profit corporation. With

roots dating to 1931, the AANR has grown to an organization

of more than 50,000 members in North America, consisting of

people from all walks of life, in all ages, shapes and sizes. We

have over two hundred and thirty clubs in the United States

and Canada, and we are affiliated world wide with the

International Naturist Federation, located in Antwerp,

Belgium. AANR has budgeted annual revenues of in excess

of one and one-half million dollars. Our professional staff at

our headquarters numbers sixteen.” AANR and its affiliated

clubs are family-oriented organizations with high standards,

including the following principles reprinted on every

membership card:

We believe in the essential wholesomeness

of all human bodies. We believe in the

naturalness of social nudism. We consider that

the exposure of the entire body to light and air

' Pursuant to Sup. Ct. Rule 37.6, counsel state that they have

authored this brief in its entirety and that financing thereof has been

from funds available to the organization.

? For more information see www aanr.com.(1999)

is beneficial to physical and mental health. We

believe that recreation - from exercise to

relaxation and socialization - is enhanced by

the nudist experience. We believe that we have

the right to practice social nudism in

appropriate settings, provided that we do not

infringe on the rights of others.

Social nudism as practiced within our clubs provides a wide

range of activities for people of all ages. Athletics, social

recreation, and interpersonal communications promote the

betterment of body and mind and strengthen family bonds.

Modern °* social nudism generally traces its beginnings

* As far back as ancient Greece, the unclothed human body has

been accepted at certain times and places as both fitting and proper. In

his “Life of Lycurgus,” Plutarch wrote of the Spartan ruler:

[He] ordered the maidens to exercise themselves with

wrestling, running, throwing the quoit, casting the dart

.... And to the end that he might take away their over-

great tenderness ard fear of exposure to the air, and all

acquired womanishness, he ordered that the young

women should go naked in the procession, as well as

the young men, and dance, too, in that condition, at

certain solemn feasts, singing certain songs, whilst the

young men stood around seeing and hearing them. Nor

was there anything shameful in this nakedness of the

young women, modesty attended them and all

wantonness was excluded. It taught them simplicity

and care for good health, and gave them some taste for

higher feelings, admitted as they were, thus, to the field

of noble action and glory.

PLUTARCH, LIVES OF THE NOBLE GRECIANS AND ROMANS 59-60 (Mod.

Lib. Ed. 1967).

to turn-of-the-century Germany, where freikorperkultur (“free

body culture”) parks were established with emphasis on

outdoor physical conditioning, vegitarianism, and clean living.

Caffeine, tobacco, and alcohol were taboo. This history, with

its air of self-justification, is responsible for some jokes and

misperceptions of nudists as a cult carrying on activities in

semi-secret “colonies.” Fortunately, this image is changing as

people recognize nudism as a legitimate choice of living style

or preferred adjunct to recreation.‘

In 1980 The Naturist Society was founded in

Oshkosh, Wisconsin to focus on the interest in the phe-

nomenon of so-called free beaches and similar recreational use

of public lands in secluded areas, hot springs and traditional

locations long used for skinny dipping. Some of those areas,

like Black's Beach in San Diego, California, have become as

famous as they are popular, not unlike the growth which has

occurred in the Mediterranean nudist resort playgrounds of

Spain, France and the former Yugoslavia. In other locales,

such as Rooster Rock State Park, Oregontocal governments

have established official nude beach areas with appropriate

park facilities and signs to advise the public. °

A Gallup poll confirms that those beliefs are in accord

with mainstream America. The poll showed a seventy-two

percent majority acceptance of the idea that there should be

* A thorough exposition of the history and philosophy of the

nudist movement in Europe and North America is found in Roberts v.

Clement, 252 F. Supp. 836 (E.D. Tenn. 1966).

* See, e.g., Kellum and Lovelace, To Bare or Not to Bare: The

Constitutionality of Local Ordinances Banning Nude Sunbathing, 20 U.

Rich. L. Rev. 589 (1986).

areas for nude recreation.®

Social Nudism in Pennsylvania.

Nine clubs affiliated with the Association are located

in Pennsylvania. Three of them are what we refer to as non-

landed clubs. In other words, they do not own or control

private property as in the case of most other nudist clubs.

Instead, the members gather for secluded back yard functions,

trips to other nudist clubs, clothing optional beaches and the

like. Such clubs also rent other facilities such as health clubs

and spas for the enjoyment of nude recreation, especially in

the winter. In 1988, a New York nudist travel club just north

of Erie rented the premises of a business in Erie, Pennsylvania

known as Presque Isle Spas for hot tub parties. The Erie

ordinance could clearly be used to prohibit such activity.

Absent a holding that Erie’s type of ordinance is

unconstitutionally over broad in so far as it could reach

nudists and their activities, other local governments

throughout Pennsylvania could legislatively ban these

legitimate recreational and social interests.

White Thorn Lodge is another of our clubs, located in

* Gallup Organization, Inc., Most Americans Approve of Nude

Recreation (Princeton, N.J., June, 1983). A recent USA Today feature

noted that “A tally by the Bay Area Guardian, a San Francisco

alternative news paper, found 185 stretches of beach along California’s

840-mile coastline that are frequented by nude sunbathers, far more than

any other state. The Naturist Society, which publishes a world guide to

nude beaches and resorts, says that nudity happens on about 650 beaches

nationwide.” USA Today Nation, 8/27/99 (electronic edition). In a

sidebar poll, the question “Would you ever go to a nude beach?” was

answered “Yes, I'd go in the buff” 34.9 percent; “Yes, I'd go if clothing

were optional” 32.6 percent; and “No, I'd never go to a nude beach.”

There were 2870 total responses.

a

Darlington, Pennsylvania. Each year it sponsors a tournament

billed as the Superbowl of Volleyball. Top level volleyball

players from around the country gather for top flight

competition over the course of three days. Some play clothed,

others not. Hundreds of spectators pay to see this particularly

spirited form of nude entertainment.

Our Experiences with Erie-style Ordinances.

Last year, South Carolina State Representative Brad

Jordan was chided in the press for introducing an anti-nudity

measure so broad it would punish breast feeding mothers,

diaper changers, and students in an after gym class shower

with fines of as much as $1,000. The legislator was quoted as

saying that he needed to pattern his bill with exactitude to

conform to the teachings of Barnes v. Glen Theatre, 501 U.S.

560 (1991) and the Indiana law there upheld. See “House to

Consider Nudity Bill This Week: Legislation Could Make

Outlaws of Nursing Mothers” 7he State April 28, 1999 at 1.

Indeed, many jurisdictions have not been as sensible as Erie,

refusing to exempt nursing mothers or young children because

the Indiana statute contained none. In J&B Entertainment v.

City of Jackson, 150 F. 3d 362 (Sth. Cir. 1998) the court

explicitly recognized that the ordinance it there upheld would

criminalize breast feeders, romping toddlers and adult

businesses alike.

An examination of our experience in Florida reveals

the troublesome consequences for the future of nude

recreation that have come in the wake of Barnes. Within the

past year, the Association has had to lobby against passage of

at least eight new local nudity ordinances. In challenging

these measures, AANR has consistently found that officials do

not wish to tiuseaten the existence of nudist activities if they

can avoid, but they fear the appearance of not being even

5

handed.

Thus, the interest of your amicus arises from the very

real and substantial possibility that, without clarification and

limitation, laws such as the one at issue here could be used to

impair our legitimate and protected activities.

SUMMARY OF ARGUMENT

1. Not all forms of nudity may be banned. In many forums,

public nudity is recognized as protected expression.

Ordinances such as Erie’s offend the Constitution because

they reach public nudity which occurs under circumstances

that do not generate the kind of adverse secondary effects

pivotal to the justification of restrictions on nudity upheld in

Barnes v. Glen Theatre, whether it be legitimate theatre or

nudist activities. And governments are not free to pick and

choose what nudity it will recognize as protected.

Il. The legitimate and protected activities of social nudists are

invaded by the unlimited reach of the Erie ordinance. It

contains no requirement, such as is found in Pennsylvania

state law and the Model Penal Code. Nudists have liberty and

privacy interests which may be constrained by the ordinances

potential reach

ARGUMENT

I. ERIE’S ORDINANCE IS SUBSTANTIALLY OVER

BROAD IN THAT IT REACHES NUDE ACTIVITY

WHICH PRODUCES NO ADVERSE SECONDARY

EFFECTS.

Public Nudity.

It is commonly asserted that a// public nudity was a

crime at common law. See, Brief of National Family Law

Foundation at 8, note 21. Such was decidedly not the case.

As Professor Perkins notes:

Indecent exposure of the person to public view

is .. .a common law misdemeanor. Blackstone

did not deal with it separately. “The last

offense which I shall mention , . . . more

immediately against religion and morality, and

cognizable by the temporal courts, is that of

open and notorious /ewdness, either by

frequenting houses of ill fame. or by some

grossly scandalous and public indecency, . . .”.

(Citing 4 BI. Comm. * 64-65) (emphasis in the

original sources).

ROSCOE PERKINS, PERKINS ON CRIMINAL LAW 336-37

(Foundation Press, 1957). Development of English common

law, for the most part, predates the development of private

bathrooms and bathing appliances. Judge Posner points out

that “in fact medieval people were quite casual about

appearing nude in public, for example en route to the public

bath.” RICHARD POSNER, SEX AND REASON 357 note 12

(Harvard 1992).’

Lack of Secondary Effects.

This Court has recognized that not all forms of nudity

may be banned, New York v. Ferber, 458 U.S. 747, 765, n.

18, citing Erznoznik v. City of Jacksonville, 422 U.S. 205,

213 (1975), and that “nudity, without more is protected

expression.” /d. See also, Jenkins v. Georgia, 418 U.S. 152

(1974); Sunshine Book Co. v. Summerfield, 355 U.S. 372

(1958), Massachusetts v. Oakes, 491 U.S. 576 (1989).

Nudist and naturist organizations face substantially

similar threats from ordinances like Erie’s as those articulated

by theatrical arts groups. See, Joint Appendix 86-90,

Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546

(1975). Nudist clubs and nudist activities, as with legitimate

theatres, implicate none of the so-called “adverse secondary

effects” so key to this Court’s decision in Barnes v. Glen

Theater, 501 U.S. 560 (1991). At least five members of the

Barnes Court seemed to recognize that urban blight and

dissolute behavior are not generated by nude performances at

venues such as New York’s Lincoln Center. /d. at 585 note 2

(Souter, J. concurring) and at 594 (White, J. dissenting).

The legislative history of Erie’s ordinance shows that

” Le Roi v. Sie y, 1 Sid. 168, 82 E. R. 1036 (1663) is often

cited in support of the i.ertion that mere nudity was a crime at common

law. In fact, the case supports the proposition, later formulated into the

Model Penal Code as discussed infra at , that an offense required an

element of intended affront or breach of good order. Mr. Sidley, in an

apparent state of intoxication, appeared naked on a Balcony overlooking

London’s busy Covent Garden, his effrontery must be presumed.

9

adverse secondary effects played no part in the generation of

the law at hand, as opposed to a previously contemplated

zoning ordinance. Rather, it is based on the moral revulsion of

a majority of the voting body. See Joint Appendix 36-48. In

Triplette Grille, Inc. v. City of Akron, 40 F. 3d 129,135-36

(6th Cir. 1994) the court held that “because the City failed to

demonstrate a link between nudity in non-adult entertainment

we do agree with the district court that the Akron ordinance

must be struck down as facially unconstitutional under the

First Amendment doctrine.” (emphasis added ). Substantially

the same defects are present in the Erie ordinance.

This Court's decision in Barnes v. Glen Theatre,

supra has led directly to a flurry of new local ordinances and

state statutory proposals similar, in effect, to the Erie law.

Many of them explicitly recite that the authority they claim is

supplied by Barnes. See, e.g., Brief of the American Liberties

Institute et al, Amicus Curiae at 1, ORANGE COUNTY PUBLIC

NUDITY ORDINANCE, Sec. 26-26 appended to its Brief,

Amicus Curiae at A-1,2. Barnes has thus invited regulators

to depart from the traditional formulation recommended by

the Model Penal Code discussed infra at 15. This has led to

confusion, as well as extended litigation (See, Brief of Orange

(County, supra at 1) because of the overbreadth caused by

implicating interests which governments previously had no

business regulating. F.g., Bledsoe v. City of Jacksonville

Beach, 20 F. Supp. 2d 1317 (M.D. Fla. 1998) (invalidating

permit scheme which limited public events at city facilities to

those promoting “family values.”).

In fact, nudist clubs and recreation facilities generate

positive economic effects.

Some municipalities have discovered that

tolerance of nudism can be highly profitable.

There was considerable resistance on the part

10

of merchants and the Mayor’s Office in Miami

to allowing nude bathing on its now famous

Haulover Beach. Once it was opened for such

use, a veritable flood of European tourists

prove to be an economic boom. Florida-based

cruise ship lines, formerly unreceptive to nudist

organizations, now solicit their business, and it

is possible to sign on for a Caribbean cruise

with hundreds of other nudists.

Layng, “Confronting the Public Nudity Taboo,” USA Today

Magazine’ March 1998 24, 27. See also, Pilla, “Battle Over

Beach Nudity May Hurt State Tourism,” Wall Street Journal,

July 19, 1995 (reprint) noting that Ft. Lauderdale, Florida

considers the availability of nude recreation to be one of the

top five factors in attracting international convention business.

Overbreadth.

To allow a governing authority to follow a “good

taste” guide to when or whether it will enforce a nudity ban

raises the chilling effects on speech that this Court and the

First Amendment does not permit, and it dramatically

illustrates its overbreadth. Freedman v. Maryland, 380 U.S.

51 (1965), Forsyth County v. Nationalist Movement, 505

U.S. 123 (1992). As the theatre interests in the instant case

informed the trial court:

We appreciate the City’s position that it does

not intend to enforce the ordinance against the

arts community. However, the current

administration's promises are not binding on

future administrations. As long as the

ordinance is on the books and can be enforced

it will have a negative impact on the arts in

Erie.

Joint Appendix 86-87 .*

The very existence of such circumstances under ordinances

such as this, as spawned by Barnes, shows its facial

overbreadth. ° When potentially applicable to the activities of

* The trial judge also noted the dilemma.

THE COURT: .. . [W]hat effect would this ordinance

have on theater... productions such as Equus, Hair, O

Calcutta? Under your ordinance would these things be

prevented, Mr. Karle?

MR. KARLE: No, they wouldn't, Your Honor.

THE COURT: Why not?

MR. KARLE: To the extent that the expressive activity

that 1s contained in those productions rises to a higher

level of protected expression, they would not be.

THE COURT: Where does it say that in the ordinance.

sir?

Id. 53.

” The design of these post-Barnes, broad-form ordinances

prohibiting all nudity appears to be quite deliberate. One of the leading

12

social nudists, the overbreadth is real and substantial. Roberts

v. Clement, supra 843-44. See also, National Endowment for

the Arts v. Finley, 524 U.S. 569, at (1998) (Souter, J.

dissenting) (“. . to whatever extent NEA eligibility defines a

national mainstream, the proviso will tend to create a timid

aesthetic. And either way, the proviso’s viewpoint

discrimination will chill the expressive activity of persons not

before the court.” (internal quotation marks and footnote

deleted).

What nudists believe is a life-affirming message of

freedom and body acceptance cannot be effectively conveyed

in the abstract. And a social nudist movement finds its

rightful place, if not a majority one, in a society that cherishes

the free competition of ideas. Prohibitions of the type found

in the Erie ordinance and the Indiana statute at issue in Barnes

cannot, in reality, be seen as content neutral and reaching only

conduct, because for the message to get out, the activity must

be able to exist. Texas v. Johnson, 491 U.S. 397 (1989);

Police Department of Chicago v. Mosley, 408 U.S. 92

proponents nationwide of such ordinances is the National Family Legal

Foundation. See, Brief of the National Family Law Foundation, supra at

1. In their legal materials used to advise local government officials, they

state:

Even when challenges are grounded in the First

Amendment, most indecent exposure laws have been

upheld. However, this is true only when the statutes or

ordinances are truly content-neutral. It is crucial,

therefore, that all ordinances be directed at prohibiting

all public nude conduct, not just nude “dancing” or

other nude conduct with some expressive element.

LEN MUNSIL and JAMES MUELLER, HOW TO LEGALLY STOP NUDE

DANCING IN YOUR COMMUNITY B-11(NFLF 1995) (emphasis added).

13

(1972); Griswold v Connecticut, 381 U.S. 479 (1965). C7

Clark v. Community for Creative Non-Violence, 468 U.S. 288

(1984)."°

Il. ORDINANCES SUCH AS ERIE’S

SUBSTANTIALLY INVADE PROTECTED LIBERTY

AND PRIVACY INTERESTS OF SOCIAL NUDISTS.

Social Nudism is a Legitimate, Lawful, and Protected

Activity.

Current Pennsylvania state la‘y criminalizes public

nudity only in so far as it involves the exposure of genitals or

the commission of sex acts in front o* a third person with the

intent to arouse or gratify sexual desire and with the

knowledge that the viewer may be offended thereby. PA.

CONST. STAT. ANN. secs. 3127, 5503, 5901. This is a

common formulation in use in most states and is a outgrowth

of the statutory and common law codifications contained in

the MODEL PENAL CODE. As Judge Posner and his co-author

'” Posner observes:

So nudist colonies (sic) on private property are all

right, but nudists should not be permitted to parade in

the public streets. .. . Indeed, the only harm is the

indignation hat some members of the majority will feel

at the thought that somewhere, perhaps thousands of

miles away. a group of people are acting on preferences

that the majority finds disgusting. POSNER, supra 233.

And he goes on to illustrate this majoritarian view in contemporary

thought by quoting from ROBERT BORK, THE TF °’TING OF AMERICA:

THE POLITICAL SEDUCTION OF THE LAW 123 (1989) “No activity that

society thinks is immoral is victimless. Knowledge that an activity is

taking place is a harm to those who find it profoundly immoral.” /d. note

23.

14

The Model Penal Code clarifies the

traditional public indecency statutes in (that) it

requires that the exposure be for the purpose

of arousing or gratifying the offender's sexual

desire or the or the sexual desire of someone

else. This provision seeks to separate nude

sunbathing and prank activity such as streaking

from acts of sexual aggression, prohibiting

only the latter. Many states have adopted this

aspect of the Model Penal Code, leaving the

question of nude sunbathing to local

ordinances that prohibit disorderly conduct.

RICHARD POSNER and KATHERYN SILBAUGH,

GUIDE to AMERICA’S SEX LAWS 83 (U

Chicago 1996)

But it is also recognized that nude sunbathing, in appropriate

conditions, is not disorderly conduct either. (/nited States v. A

Naked Person, 841 F. Supp. 1153 (M.D. Fla. 1993), /n re

Smith, 7 Cal. 3d 362, 497 P.2d 807 (1972), People v. Gilbert,

72 Misc. 2d 795, 339 N.Y.S. 2d 743 (Cr. Ct. 1973).

Erie’s nudity ban may be aimed at striptease clubs.

But in effectively curtailing the legitimate and fully legal

activities of social nudists in Erie, now or in the future, it

sweeps far too wide. The activities of social nudists are not

anything resembling the erotic performances of strip tease

dancers. Fundamental liberty interests are at stake here. Two

federal court cases are particularly instructive.

In Roberts v. Clement, 252 F. Supp. 835 (E. D. Tenn

1966) a three judge court, after extensively tracing the

development of social nudism in Europe and North America,

15

held unconstitutional under the Fourteenth Amendment’s due

process guarantees a statutory effort by the State of

Tennessee to ban nudist practices.

magazine cases).... Nudism may be

unappealing and unattractive to some people.

It may be repulsive and vulgar to others. But

Defendants (Tennessee) say that the

statute was passed under the police power . . .

and that the words in it should be given their

natural and ordinary meaning. But it cannot be

said with certainty whether persons of one sex

taking sun baths in the nude in isolated places

is prohibited. The question of whether a man

and his wife can take a sun bath in the nude in

an enclosure hidden from the public without

violating the Act is in doubt. Restriction on

nudist practices and the operation of nudist

colonies as to time and place is unlimited.

A statute that contains a criminal sanction that ‘s

so unclear and indefinite as to make it uncertain in

meaning does not meet the due process test contained

in the Fourteenth Amendment to the Federal

Constitution. /d. at 843.

that does not limit its right to constitutional

protection. Whether or not it appeals to or

repels an individual’s sensibilities is irrelevant

when a court is bound to apply First

Amendment rights which do not incorporate

such subjective standards.

Plaintiff s activities at Pine Tree

Associates (a nudist club) in no way intrudes

upon the public’s sensibilities. He is a member

of a group whose activities are neither illegal

nor immoral and which are carried on

unobtrusively. The group has a good

reputation in this community. The record

reveals the plaintiff s behavior to be above

reproach in his employment and in his

neighborhood.

To condition one’s employment upon the

relinquishment of his constitutional right is an

unwarranted and illegal intrusion upon that

In Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970) the

court held that an applicant for a position with the Baltimore

Police Department rights of freedom of association were

violated by the rejection of his application based solely on the

fact that he was a nudist, there being no nexus between his

activities and a paramount government interest. After an

extensive and reasoned elaboration of the state’s admittedly

great power and latitude in areas of public employment, |

especially those involving public safety, the court went on to |

fundamental right that will serve as a “chilling

- effect” upon the exercise of other rights as well

as a deterrent upon others in exercising this

same right. Cf Dombrowski v. Pfister, 380

U.S. 479, 85 S. Ct. 1116, 14 L. Ed.2d 22

(1965). The reprisal here of forbidding

employment to the plaintiff because he is a

nudist will have the effect of stifling others

from undertaking the valid exercise of this

right. An individual will be hesitant in

practicing nudism once he is aware that the

avenue of employment as a member of the

| Baltimore City Police Department is closed. As

16 17

find that:

This court has uniformly held that nudism |

per se is not immoral or obscene (Citing nudist

defendant Pomerleau testified, no nudist would

be hired on the police force. Such an arbitrary

exclusion is inconsistent with Constitutional

guarantees. /d. at 67.

While rejecting the nudist plaintiffs’ challenge to an

anti-nudity regulation at the Cape Cod National Seashore, the

court in Williams v. Hathaway, 400 F. Supp. 122 (D Mass.

1975 aff'd sub nom. Williams v. Kleppe, 539 F. 2d 803 (st.

Cir. 1976) did recognize that they enjoyed a protected

associational interest in the practice of social or recreational

nudism. See also, Sierra Club v. Morton, 405 U.S. 727

(1972); Cleburne v. Cleburne Living Center, Inc., 473 U.S.

432 (1985). This Court has consistently recognized that so

long as no breach of the peace or subversive, discriminatory

or otherwise illegal activity is carried out, the assembly clause

protects the rights of associations to free and private exercise

of their rights under the First Amendment as well as less

specified penumbrae of the Constitution. NAACP v.

Alabama, 357 U.S. 449 (1958); Gibson v. Florida Legislative

Com.» --?, 372 US. 539 (1963). See also, Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.

833 (1992), Pierce v. Society of Sisters, 268 U.S. 510 (1925).

Nudists enjoy such protected rights as well. Bruns v.

Pomerleau, supra. }

CONCLUSION

Your amicus submits that affirming the judgment of

the Supreme Court of Pennsylvania this Court would cure the

overbreadth problems which have arisen from the reading of

Barnes v. Glen Theatre, supra and thereby protect the liberty

interests thousands of citizens have in a form of public nudity

far removed from barroom-style adult entertainment.

18

R lly submitted,

sae

“YALE

R T. Page

Counsel of Record

517 East 16th Avenue

Denver, Colorado 90203

(303) 830 2522

On the brief:

Erich Schuttauf

Government Relations Director

American Association for Nude

Recreation

1703 North Main

Kissimmee, Florida

1-800 TRY NUDE

19

CERTIFICATE OF SERVICE

1, Robert T. Page, counsel of record for Amicus

Curiae American Association for Nude Recreation, pursuant

to the Rules of this Court, do hereby certify that I have caused

to be served on the following persons at the addresses listed,

three copies of the forgoing brief, by common carrier delivery

on the 30th day of September, 1999.

Gregory A. Karle

Office of the City Solicitor, Room 505

626 State Street

Erie, PA 16501

Philip B. Friedman

Ambrose, Friedman and Weichler

319 West 8th Street

NM x (/

Erie, PA 16502

20