# Amicus Curiae Brief — Erie v. Pap's AM

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 277

## Text

- .
| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0258%3A20. Public record. Not legal advice.