Petition for Writ of Certiorari — Glassey v. California

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SUBJECT INDEX

PAGE

Jurisdiction 2

Questions presented 3

Statutes involved 3

Statement of the case 4

Reasons for granting the writ...... 6

Argument 8

Nudism is a social belief which, like any other social, economic

or religious belief, can be proscribed only if the practice of

‘the belief violates the “clear and present danger” rule............ 8

A. Unless a practice involving social beliefs or a course of

conduct is anti-social, or against public peace of good

order, the State cannot restrict the exercise of the per-

sonal liberty to practice that belief...................... 8

B. The statute, proscribing as it does social beliefs and

practices (as distinguished from ordinary commercial “

transactions) is subject to searching inquiry as to its

constitutionality and is not buttressed with the ordinary

Le aa NE NE Te OT OR 10

C. Heterodox social practices of all types including the

practice of nudism are entitled to full freedom of ex-

pression subject only to the “clear and present danger

CU | inciieshicnnsiscctinatinishtnntnccnihtieiinpiicteiniriibneiscscoghiiabiniahibaeimamaiiis 11

II.

The practice of nudism itself, without more, does not constitute

a clear and present danger to society. .............ceceeceeeceeeeeeeeeee 12

A. Nudism is neither obscene, immoral, anti-social nor

against the public peace or good order... 12

cee an ene

PAGE

ITI.

The ordinance is arbitrary, indefinite, vague and uncertain........ 15

A. The difference between criminality and non-criminality

under the statute is a tiny piece of cloth 15

B. The word “nude” is not defined in the ordinance thus

rendering the ordinance invalid for vagueness and un-

certainty ee

C. The ordinance is arbitrary and unreasonable because it

outlaws ordinary family relationships and conduct.......... 19

D. There is no reasonable basis for prohibiting three or

more persons from practicing nudism im the presence of

each other while at the same time permitting two per-

sons to practice it in each other’s presence 20

Conclusion 20

Appendices :

Appendix A. Los Angeles Municipal Code, Sec. 47.50

(Nudist Camps and Colonies) App. p. 1

Appendix B. Fraternity Elysia Registration Form.....Apr. p. 3

—

TABLE OF AUTHORITIES CITED.

CasEs. PAGE

Abrams v. United States, 250 U. S. 616 15

Bridges v. California, 314 U. S. 252 7, 8

Cleveland v. United States, 91 L. Ed. (Adv.) 1 11

Connolly v. General Construction Co., 269 U. S. 385... 17

Entick v. Carrington, 19 How. St. Tr. 1029 8

Herbold v. A. T. & S. F., 117 Cal. App. 430. 2

Lanzetta v. New Jersey, 306 U. S. 451 16, 17, 18

Parmelee v. United States, 113 F. (2d) 729 12

People v. Burke, 243 App. Div. 83, 267 N. Y. 571... 12

People v. Muller, 96 N. Y. 408. 13

Thomas v. Collins, 323 U. S. 516 7, 8, 10

Thornhill v. Alabama, 310 U. S. 88... 19

United States v. Carolene Products Co., 304 U. S. 144... 10

United States v. Leftowitz, 285 U. S. 452.0... 8°

Weeks v. United States, 232 U. S. 383. 8

West Virginia Board of Education v. Barnette, 319 U. S. 624...

11, 12

Young v. California, 308 U. S. 147.. ® oe

DICTIONARIES

Bouvier’s Law Dictionary nivesnnnancncthnsiesastedaiintnitnntchaadenitbassorkenisicss 18

Webster’s New International Dictionary... cece. 17

STATUTES

California Constitution, Art. VI, Secs. 4, 4b, 5.0.0.0... 2

California Penal Code, Secs. 1466-1470 ......00....ccccccseeecccesseeeeeecccos. 2

Judicial Code, Sec. 237 (28 U. S. C., Sec. Yt) | Cena Oe 2

Los Angeles Municipal Code, Sec. 47.50, Subd. Ga Piictiessacens 1, 2, 19

Sunshine and Health, Vol. XVI, No. 7, July 1947, p. 30 (official

publication of the American Sunbathing Association )............. 9, 14

United States Constitution, Fourteenth Amendment, Sec. 1.......... 3

IN THE

Supreme Court of the United States

Octroser TERM, 1947.

Lura D. Grassey and Henry L. BroENING,

Petitioners,

US.

THE PEOPLE OF THE STATE OF CALIFORNIA.

Petition for Writ of Certiorari to the Appellate De-

partment of the Superior Court of the State of

California, in and for the County of Los Angeles.

This petition for a writ of certiorari seeks a review of

a decision of the Appellate Department of the Superior

Court of the State of California, in and for the County

of Los Angeles. That court considered the effect of

Subdivision (H) of Section 47.50 (the “anti-nudism”

ordinance) of the Los Angeles Municipal Code on the

rights of the petitioners in the light of the basic liberties

guaranteed by the Fourteenth Amendment to the United

States Constitution | Tr. 119-120; R......... ].2. On the basis

1The Record as of the date of the printing of this petition is

being printed by the clerk of this court and is not yet available.

References to the Record, therefore, are to the typewritten trans-

script certified to this court by the clerk of the Appellate Depart-

ment of the Superior Court, in and for the County of Los Angeles,

and are denoted “Tr.” followed by the page number.

eae - Eo NEL NS TEER Ow

SD: ”

ee

of this consideration the Appellate Department found that

the ordinance in question did not unduly restrict those

personal liberties and that it was therefore not violative

of federal constitutional right. The court accordingly

affirmed the judgment of the trial court. The judgment

of the trial court [Tr. 68; R- ........ ] and the Memo Opinion

of the Appellate Department [Tr. 103; R. -....... ] are not

reported.

Jurisdiction.

_ The final judgment of the Appellate Department of the

Superior Court of the State of California, in and for the

County of Los Angeles, was entered May 5, 1947 [Tr.

Ce ae ]; and petition for rehearing was denied on

May 12, 1947 [Tr. 115; R. ........ ]. Said court is the

highest court in the State of California to which petition-

‘ers under the law of that state might appeal their case.”

The issue as to which petitioners seek this court’s review

involving the constitutionality of Subdivision (H) of

Section 47.50 of the Los Angeles Municipal Code under

the Fourteenth Amendment to the United States Constitu-

tion, was decided adversely to petitioners, over their argu-

ment, by the state court [Tr. 103; R. ........ ]. The juris-

diction of this court is invoked under Section 237 of the

Judicial Code, as amended (28 U. S. C. 344 (b)).

2California Constitution, Art. VI, Secs. 4, 4b and 5;

California Penal Code, Secs. 1466-1470;

Cf. Young v. California, 308 U. S. 147, 154, and Herbold v.

A. T. & S. F., 117 Cal. App. 430.

holon

Questions Presented.

1. Does Subdivision (H) of Section 47.50 of the Los

Angeles Municipal Code which prevents the operation of

any place where Nudism may be practiced, on its face and

as applied to petitioners herein, unconstitutionally restrict

petitioners’ personal liberty without due process of law

within the meaning of Section 1 of the Fourteenth Amend-

ment to the United States Constitution?

2. Does the practice of Nudism pursuant to a sincere

belief in the principles of Nudism where there is no show-

ing of obscene or immoral conduct constitute an exercise

of freedom of speech, within the guarantees of the Four- ~

teenth Amendment?

Statutes Involved.

Subdivision (H) of Section 47.50 of the Los Angeles

Municipal Code® provides:

It shall be unlawful for any person to operate,

manage, or conduct any camp, colony, or other place

of resort, wherein three or more persons not all of

the same sex are permitted or allowed to commingle

in the nude; or wherein persons are permitted or

allowed to view persons of the opposite sex in the

nude.

8The Los Angeles Municipal Code is Ordinance 77,000 of the

City of Los Angeles. The entire text of Section 47.50 is herein-

after set forth as Appendix “A.”

anlliked

Statement of the Case.

Facts—On August 31, 1946, petitioners were arrested

when police officers of the City of Los Angeles went to

the premises involved and posed as believers in Nudism

Paws Fs Me, cnciies ]. The officers were admitted only after

they employed subterfuge and professed agreement with

the principles of Nudism by signing a Registration Form

with the fictitious names of “Mr. and Mrs. Robert and

Anna Bond” [Tr. 76; R. ........ ]. The agreement signed

by the police officers is the same one all who desire en-

trance must agree to and is People’s Exhibit “A.” It is

hereinafter set forth as Appendix “B.”

The premises here involved are located at 9804 La Tuna

Canyon in Los Angeles County, California [Tr. 76; R.

sonata ], about one mile away from the highway [Tr. 79;

is senses ]; they are surrounded on three sides by high

hills and there is no habitation on any of the hills [Tr.

ae ]; the entrance to the premises is removed

from any visible habitation [Tr. 80; R. ........ ]. The

premises are run by the Fraternity Elysia [Tr. 79; R.

oni ], an organization the members of which believe in

the practice of Nudism [Tr. 79; R. ........ ]. They believe

that great moral and health benefits are to be derived from

the practice of Nudism [Tr. 81; R. ........ ]; that their pur-

pose in being in the nude is not to expose themselves to

others but to get the benefits of Nudism [Tr. 81; R. ........ ].

At the time petitioners were arrested there were men,

women and children on the premises—some of whom were

in the nude [Tr. 77; R. ........ ], some of whom wore

er

wile

“G-straps” [Tr. 78, 79; Ro ou... ], some of whom wore

shorts [Tr. 76; R. ........ ], and some of whom were fully

clothed [Tr. 77, 79; Roo... ]. The activity that was

going on consisted of: A lady taking care of the office

ieee ere ]; two men playing on the badminton

court (Tr. 743 R. ic... ]; a girl sitting on the back porch

of one of the buildings [Tr. 77; R. ........ ]; three men and

one woman walking toward the swimming pool [Tr. 77;

i senenias ]; one woman walking toward a cabin [Tr. 79;

| Sp ]; three men and one woman sunning themselves

aL. 2 ee ]; a boy about 9 years old in the

swimming pool [Tr. 80; R. ........ ]; two other children

nearby |Tr. 80; R. ........ ]; and two or three men were

in the game room [Tr. 79; R. ........ ].

Decisions BELow—The trial court (Municipal Court

of the City of Los Angeles) did not render an opinion.

After a verdict of guilty by a jury [Tr. 67; R. ........ 1),

the trial court sentenced petitioner Glassey to 180 days

in the Los Angeles City Jail [Tr. 69; R. ........ ] and peti-

tioner Broening to 90 days in the Los Angeles City Jail

Bs | ee ].

The Appellate Department of the Superior Court af-

firmed the judgment of the trial court and on the consti-

tutional issues here involved said: ‘We do not find sub-

division (H) to be invalid either for uncertainty or as

unduly restricting personal liberty” [Tr. 104; R. ....... ].

Further execution of sentence was stayed by the Appellate

Department on July 23, 1947, pending disposition by this

court of this petition.

illness

Reasons for Granting the Writ.

1. This court has not passed upon, and a decision of

the highest court of the land is needed to settle, the issue

as to whether or not in our society, as today constituted,

persons who are sincere in their belief in Nudism and who

commit no anti-social or immoral acts may be prohibited

by a municipality from practicing Nudism pursuant to

their sincere belief.

All will agree that our nation is great because it affords

_ to all persons the maximum freedom of personal liberty

consistent with the protection by society from those activi-

ties which are harmful to it. Always there is the question

in determining how far personal liberties shall be permitted

to operate as to where “the other fellow’s nose begins.”

Nudism is an idea in which many persons believe. It is

also an idea by reason of the belief in which many persons

are being put in jail—not because they are committing

unlawful acts but because they are practicing Nudism.

This court should, therefore, pass upon the question as

to whether Nudism itself, with nothing more, should not

be permitted to live or whether it is of such a nature as

to permit of its demise. In other words, does not our

society, as exemplified by the constitutional guarantees,

protect a person in his belief that good health and high

morals may be achieved in the practice of going about

without clothes at such times and places where others will

not be offended? At least is this not a right where no

illegal or immoral acts occur? Constitutionally stated,

does not the concept of the “clear and present danger rule”

eines

protect this phase of living where, as here, there is no

evidence of promiscuity or immorality?

The many persons who believe in Nudism constitute a

minority whose rights are entitled to this court’s protection

just as are the rights of other minorities in other fields of

human conduct. They are entitled, therefore, to a consid-

eration by this court of those rights.

2. This court has given broad expression to the doc-

trine of the “clear and present danger rule” as being a

“working principle* to determine “where the individual’s

freedom ads and the State’s power begins.”* But those

cases have involved the exercise of expression through the

medium of the tongue or pen. This court has never passed

upon the question as to whether or not that rule also ap-

plies to freedom of expression through the medium of

action. That is whether or not there is also, within the

framework of the constitutional principle evolved, the right

to practice one’s social, economic or political belief as well

as to give oral or written notice of it.

The case at bar is the case which gives this court the

opportunity to pass upon that fundamental issue. The

writ, therefore, should issue.

——_—__

*Bridges v. California, 314 U. S. 252, 263.

5Thomas v. Collins, 323 U. S. 516, 529.

-

ARGUMENT.

L.

Nudism Is a Social Belief Which, Like Any Other

Social, Economic or Religious Belief, Can Be

Proscribed Only if the Practice of the Belief

Violates the “Clear and Present Danger” Rule.

A. Unless a Practice Involving Social Beliefs or a Course

of Conduct Is Anti-social, or Against Public Peace of

Good Order, the State Cannot Restrict the Exercise of

the Personal Liberty to Practice That Belief.

It is the genius of our constitutional system of govern-

ment that we start with the proposition that all persons

living under the protection of that Constitution are free

to act as they will so long as that action does not interfere

with the right of society to protect itself from detrimental

acts.

In the matter of the advocacy of particular beliefs

through the medium of speech or assembly this rule has

been expressed by this court as the “clear and present

danger rule.’”*

But this right to act so long as one’s actions are not

anti-social or against the peace or good order of the com-

munity is not confined to matters or opinions concerning

economic or political or religious beliefs. It extends to

all matters of social belief. Particularly is this true with

regard to matters concerning the “privacies of life.’

®Thoraas v. Collins, 323 U. S. 516;

Besdges v. California, 314 U. S. 252.

tWeeks v. United States, 232 U. S. 383, 390;

Entick v. Carrington, 19 How. St. Tr. 1029;

Cf. United States v. Leftowitz, 285 U. S. 452, 466.

_—

willis

In the case at bar it must be clearly borne in mind that

the practice of Nudism itself is sought to be prohibited

by the statute. There is nothing to indicate that any anti-

social or immoral acts took place or that there was any

clear or present danger that they would take place. It is

purely and simply an attempt on the part of the City of

Los Angeles to prevent these petitioners and others of

like belief to practice their belief, the sincerity of which

was never questioned. There is no attempt on the part

of petitioners to force their beliefs upon others, nor to

practice their beliefs in public or even where those who

are not like minded would view the practice or be offended

by it. Thus the recurd shows that the premises were far

away from any habitation or public place [Tr. 79; R.

ee ]; it was a secluded spot, entrance to which was only

permissible to those who were sincere believers in Nudism

(Te. 76s. Bip cnc. ]. And nowhere in the record is there

the slightest hint that any but normal healthful and moral

pursuits were being carried on.

The beliefs which the ordinance in question seeks to

prohibit are these :*

“We believe in the essentiai wholesomeness of the

human body and all its functions.

“We believe in inculcating in all persons a desire

to improve and perfect the body by natural living in

the out-of-doors.

“We believe that sunshine on the entire body are

basic factors in maintaining radiant health and happi-

ness.

8Sunshine and Health, Vol. XVI, No. 7, July 1947, p. 30 (Official

Publication of the American Sunbathing Association).

AeA Ns OOO 9 ne Etats ba

a a

“We believe that the health of the nation will be

immeasurably advanced through the wide acceptance -

of the principles and standards advocated by the

American Sunbathing Association.

“We believe that presentation of the male and

female figures in their entirety and completeness needs

no apology or defense and that only in such an atti-

tude of mind can we find true modesty.”

Thus it is clear that there is here involved another

minority belief which is entitled to constitutional protec-

tion. It is a belief the practice of which, unless in and

of itself action which violates the clear and present danger

rule, cannot constitutionally be proscribed.

B. The Statute, Proscribing as It Does Social Beliefs and

Practices (as Distinguished From Ordinary Commercial

Transactions) Is Subject to Searching Inquiry as to Its

Constitutionality and Is Not Buttressed With the Ordi-

nary Presumption of Validity.

This rule of constitutional construction was recognized

in United States v. Carolene Products Co., 304 U. S. 144,

153, and is now clearly the guide to legislation seeking to

curtail the expression, by word or act, of social beliefs.

(Thomas v. Collins, 323 U. S. 516, 530.)

Especially is this true where the legislation is directed

against a particular minority or “victim” of special legis-

lation, here—the Nudists. In the Carolene Products case,

supra. this page, this court said:

“Prejudice against discrete and insular minorities may

be a special condition, which tends seriously to curtail

the operation of those political processes ordinarily to

be relied upon to protect minorities, and . . . may

call for a correspondingly more searching judicial

inquiry.” (Italics added.)

—

—]j]—

And no showing was made by the state, to overcome

the presumption of invalidity, that there was any danger

clear, present, or otherwise of the taking place of any anti-

social, immoral or other act that the state has the right to .

prevent.

C. Heterodox Social Practices of All Types Including the

Practice ef Nudism Are Entitled to Full Freedom of

Expression Subject Only to the “Clear and Present Dan-

ger Rule.” 3

In West Virginia Board of Education v. Barnette, 319

U. S. 624, the practice of the belief that the salute to the

Flag violated one’s conscience was upheld by this court

as entitled to protection. So the requirement that all

school children must partake in the ceremony was declared

invalid as to Jehovah’s Witnesses. Despite strong resent-

ment on the part of the majority of the community (see

Brief of the American Legion), this court recognized that

the Board of Education had gone too far in curtailing the

practice of belief.

There are, unquestionably, certain practices of belief

that the state has the right to prevent—for example,

polygamy. (Cleveland v. Uniied States, 91 L. Ed. ( Adv. )

1.) But such practices are admittedly anti-social in and

of themselves.

The practice of Nudism, calling for the high morality

that it does [People’s Exhibit “A” ], falls rather with the

Flag Salute type of case rather than with the polygamy

type of case. It should receive the same constitutional

protection.

wcities

II.

The Practice of Nudism Itself, Without More, Does

Not Constitute a Clear and Present Danger to

Society.

A. Nudisim Is Neither Obscene, Immoral, Anti-social Nor

Against the Public Peace or Good Order.

It must always be borne in mind that Nudism, as prac-

ticed and as shown by the record in this case, does not

involve display, exhibitionism or the foisting of the belief

upon those who are not in sympathy with it. It involves

the practice of the belief away from public places and only

in the presence of those who are in agreement, and it

involves the commission of no immoral or otherwise

illegal acts.

For this court to sustain the ordinance would be for

this court to sustain the proposition that to view the human

body is something inherently bad or obscene in and of

itself. That this opinion is held by some will not be gain-

said by petitioners. (See dissenting opinions in People v.

Burke, 243 App. Div. 83 and 267 N. Y. 571.) But the

mere fact that there is disagreement as to a particular

practice does not make the practice itself one which can

be prohibited. (Cf. West Virginia Board of Education v.

Barnette, 319 U. S. 624.)

The proper view is that the human body is something

of art and beauty in and of itself the display of which,

unless accompanied by acts otherwise immoral or in places

where others might be offended, is not contrary to the

ends of society. Thus in Parmelee v. United States, 113

F. (2) 729, 734 (App. D. C., 1940), the court said:

“Nudity in art has long been recognized as the

reverse of obscene. Art galleries and art catalogues

aint

contain many nudes, ancient and modern. Even such

a conservative source as Encyclopedia Britannica con-

tains nudes, full front view, male and female, and

nude males and females pictured together and in

physical contact.”

_ Nor is the view that nudity itself is not immoral or

obscene of strictly recent origin. As early as 1884 the

New York court in People v. Muller, 96 N. Y. 408, said:

“It is evident that mere nudity in painting or

sculpture is not obscenity. Some of the great works

in painting or sculpture as all known represent nude

human forms. It is a false delicacy and mere prudery

which would condemn and banish from sight all such

objects as obscene simply on account of their nudity.”

Certainly the human body itself should not be in any

less favored position than reproductions of it.

The principles and standards of the Nudists themselves

clearly show that immorality and obscenity are the very

things which they desire to eliminate. Thus the record in

the case at bar shows [Tr. 78; R. ........ ] the following:

“One man (a Nudist on the premises at which

petitioners were arrested), who had on a G-strap,

said ‘do you know anything about Nudism? It has

given us great health benefits; it has helped my wife

considerably.’ I (the arresting officer) then asked

him if he did not object to the children being in the

nude or seeing adults in the nude. He said that he

did not object to it and knew that there were so many

other children who were having trouble because of

sex curiosity, but that the children who were brought

up in the belief of Nudism did not have any of that

trouble and that their morals were of the highest

caliber.”

coal ules

And the official platform of the Nudists bears out the

same conclusion. It is:°

“Our goal is the healthy mind in the healthy body.

This is not only a creed but a way of life. Sun, light

and air are vital conditions of human well-being. We

believe these elements are insufficiently used in present-

day life, to the detriment of physical and moral health.

For the purpose of health and recreation and for the

conditioning of man to his world we offer a new social

practice, based on the known wholesome value of ex-

posure to these elements and in the spirit of natural-

ness, cheerfulness, and cleanness of body and mind

that they symbolize. We aim to make the fullest

possible use of sun, light and air by a program of

exercise and life in the open in such a way as will

result in the maximum physical and mental benefit.

“We believe in the essential wholesomeness of the

human body, and all its functions. We therefore re-

gard the body neither as an object of shame nor as a

subject for levity or erotic exploitation. Any attitude

or behavior inconsistent with this view is contrary to

the whole spirit of the society and has no place

among us.

“The practice of our physical culture tends toward

simplicity and integrity in all ways. We counsel for

our members the sane and hygienic life. We reserve

the right to impose abstinence from stimulants and

intoxicants at our meetings and on our grounds.

“We invite to our membership persons of character

of all ages and both sexes. Our purposes are not

exclusively physical or cultural or esthetic but rather

a normal union of all these. We make no tests of

®*Sunshine and Health, Vol. XVI, No. 7, July 1947, p. 24.

—15—

politics, religion or opinion provided that these are so

held as not to obscure the purposes of the Movement.

It is intended that the Movement shall be representa-

tive of the whole social order.”

A practice of the belief of the ideals above set forth

cannot be condemned ipso facto as immoral or obscene.

The very creed, or “way of life,” sets forth the antithesis

of immorality or obscenity.

ITT.

The Ordinance Is Arbitrary, Indefinite, Vague and

Uncertain.

A. The Difference Between Criminality and Non-criminality

Under the Statute Is a Tiny Piece of Cloth.

The “legal litmus paper”’® under the ordinance is a few

inches of cloth. Thus if at the premises the persons were

to wear a so-called “G-strap” [Defendant’s Exhibit 1},

the petitioners would not have been arrested. For the

statute reads that what is prohibited is a place where

persons of the opposite sex may be together in the nude.

From a Biblical standpoint it may be said, in general, that

the fig-leaf has denoted the difference between what is

nude and what is not nude. From the standpoint of the pro-

tection of society from the immorality or obscenity which

the ordinance purportedly is designed to reach, such a dis-

tinction is without merit. In fact, quite the contrary is

the result to be achieved by the ordinance. It is well

known that a far greater erotic or sensual impulse may be

derived from a view of the draped form than from the

completely nude form. The sensual or erotic desires arise

Justice Holmes in Abrams v. United States, 250 U. S. 616, 629,

a

we

to a greater degree when there is the suggestion of nudity

rather than when the completely nude form is shown.

Persons who capitalize on this human trait (circus side

show operators, burlesque dancers, etc.) take full advan-

tage of it. And even those who are responsible for the

design of ladies’ clothes take pains to emphasize by sug-

gestion and “daringness” the features of the female body

which differentiate it from the male. It is this very sug-

gestion of immorality or obscenity which the petitioners

and other Nudists seek to eradicate. a.

If the word “nude” in the ordinance were to be given

any other interpretation than complete nakedness, it would

then perforce fall of its own weight within the meaning

of Lanzetta v. New Jersey, 306 U. S. 451, because it would

be too vague a meaning, there being nothing in the ordi-

nance to define how much covering must be on the person

before it be considered that he is not in the nude.

But there is no need to belabor the definition of the

word. It seems clear that what the statute aims at pre-

venting is a place where persons of the opposite sex may

be together completely naked. If they are not thus com-

pletely ‘‘in the skin,” so'to speak, it is not a violation of

the law.

It thus follows that the statute is arbitrary on its face

and as enforced because the dividing line denoting crimi-

nality is an insignificant piece of material.

| eames ara mare tite ce Kk: Tan Aer ada tie

oli,

B. The Word “Nude” Is Not Defined in the Ordinance Thus

Rendering the Ordinance Invalid for Vagueness and Un-

certainty.

This court has many times pointed out that a criminal

statute which in its terms is so vague that ordinary men

would differ as to its meaning violates due process of law."

Certainly if the word “gangster” without definition renders “

a statute void for uncertainty and vagueness,” so also

should the word “nude” undefined.

A search of the law books gives little help.

The word is defined in Webster’s New International

Dictionary as follows:

“Nude (nud), a. (L. Nudus. See Naked : )

1. Law Naked: without consideration or, in

Roman and Civil Law, without a cause (see cause,

3); as a nude contract. (cf. naked contract. See

naked, 7b); a nude pact. See Nupum Pactum.

2. Bare; mere; naked, manifest. Obs.

3. Bare; naked; devoid of covering, as hair, in-

vestment, or the like; barren; as, a nude bud, room,

or mountain, ;

4. Naked; unclothed; as a nude person or statue.

Syn.—See Naked.

Nude. n. 1. Paint. & Sculp. A nude or undraped

figure.

2. With the. The undraped human figure, or a

representation of it in art; also, the state of being

nude,”

"Connolly v. General Construction Co., 269 U. S. 385, 391-393;

Lansetta v. New Jersey, 306 U. S. 451, 458.

Lansetta v. New Jersey, supra, note 11,

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Bouvier’s Law Dictionary defines the word as follows:

“Nude. Naked. Figuratively, this word is now

applied to various subjects. Nude matter is a bare

allegation of a thing done, without any evidence of it.”

The most that can be gathered from these definitions is

that nude means completely naked—without any clothing.

But is that what is meant by the ordinance? It is impos-

sible to tell. For example, shoes are certainly a part of

one’s ordinary clothing. And so a person reading the

statute and interpreting it to mean simply completely with-

out clothing or entirely naked, could feel—and rightly so—

that he would not be violating the statute by operating a

place where persons went around without clothing except

for shoes. Similarly, would it be a violation of the statute

for petitioners to operate a place where the women were

required to wear brassiers but nothing around their groins?

The law abiding citizen can get no answer to this problem

from reading the ordinance. Or is the ordinance violated

‘if the women are required to wear so-called “G-straps”

but are not required to cover their breasts?

Thus we find here a criminal statute which has all the

vice that was condemned in the Langetta case.

The Appellate Department interpreted the subdivision

here in question as entirely separate from the rest of the

ordinance. But even if we look to the rest of the ordi-

nance in an effort to find a definition of the word, no

information is gleaned. The closest to a definition is found

in Subdivision (A):

“Definitions: ‘Nudist camp or colony’ shall mean:

any place where three or more persons, not all mem-

bers of the same family, congregate, assemble or

associate for the purpose of exposing their bodies in

the nude in the presence of others or of each other.”

——

_—

willie:

This “definition” helps not at all, for what is meant by

“nude”? Is a person who has on a pair of shoes and

socks nude? Certainly his whole body is not exposed “in

the nude.” Does the ordinance condemn exposing one’s

toes to other persons? Or does the ordinance condemn

exposing one’s sexual organs to others? Nowhere in the

ordinance can the answers to these questions be found.

If the ordinance is intended to prevent the exposing of

the sexual organs, it could very well have said so and so

inform the citizenry ahead of time as to what is prohibited.

The ordinance not having the standard of certainty re-

quired, conviction under it violates due process.

C. The Ordinance Is Arbitrary and Unreasonable Because

It Outlaws Ordinary Family Relationships and Con-

duct.

The Appellate Department of the Superior Court has

ruled that Subdivision (H) of Section 47.50 is entirely

severable from the other subdivisions of the ordinance

ice 3 Sem ]. Accordingly a reading of Subdivi-

sion (H) leads to the conclusion that a husband who

provides a household for his wife and 2-month-old child

is guilty of violating the ordinance if the husband and

wife be unclothed in the presence of each other and in

the presence of their naked child. Clearly such restriction

on personal habits exceeds the ends to which society can go

to protect itself.

And in matters concerning the exercise of freedom of

expression this court will judge the constitutionality of a

statute on its face in the light of the abuses that may arise

from it. (Thornhill v. Alabama, 310 U. S. 88, 97.)

—_—

D. There Is No Reasonable Basis for Prohibiting Three or

More Persons From Practicing Nudism in the Presence

of Each Other While at the Same Time Permitting Two

Persons to Practice It in Each Other’s Presence.

Under the ordinance, had petitioners operated the exact

same type of an establishment but only permitted two

persons at a time of opposite sexes to view each other in

the nude, they would not have committed a crime. If the

practice of Nudism has the deleterious effect on society

claimed, it would have the same effect whether many per-

sons are in the nude in each other’s presence or whether

but two are. In fact, it is more likely that when but two

are thus allowed in each other’s presence immoral or anti-

social acts will take place than when many persons are

involved.

Conclusion.

It is therefore respectfully requested that the Petition

for Writ of Certiorari to the Appellate Department of the

Superior Court of the State of California, in and for the

County of Los Angeles be granted and that the judgment

below be reversed.

A. L. WIrRIN,

Counsel for Petitioners.

FRED OKRAND,

Of Counsell.

APPENDIX A.

“Sec. 47.50. Nupist CAMPs AND COLONIES.*

(A) Definitions.

1. ‘Nudist Camp or Colony’ shall mean: any place

where three or more persons, not all members of the same

family, congregate, assemble or associate for the purpose

of exposing their bodies in the nude in the presence of

others or of each other.

(B) It shall be unlawful for any person to operate,

manage or conduct any nudist camp or colony without a

permit therefor from the Board of Police Commissioners.

No permit shall be issued for any such camp or colony

unless persons of opposite sexes there congregating or

assembling or otherwise participating in the activities

thereof are so effectively segregated by adequate structural

barriers that persons of one sex can neither commingle

with nor view persons of the opposite sex in the nude.

Any permit issued in violation hereof shall be void.

(C) Each application for a permit hereunder shall be

made upon a form prepared by the Board setting forth

the proposed location and such other information as the

Board may require; it must be signed by the person to be

in responsible charge or management of the premises, and,

if the applicant be a corporation, partnership or association,

by each of the responsible officers thereof.

The Board may thereupon make such investigation as it

deems necessary, and if it shall determine that adequate

provision has not been made for the segregation of the

sexes, or that the applicant or his associates are not fit and

proper persons to conduct such a camp or colony, or that

the proposed location is not suitable or appropriate or that

the granting of a permit would not comport with public

welfare or morals, then the application must be denied.

*Defendant’s Exhibit 3.

ait :

(D) Any permit issued hereunder may be suspended or

revoked by the Board upon any ground hereinabove men-

tioned as ground for denial thereof, or in any of the

following cases:

1. If the complete segregation of the sexes has not been

continuously and effectively maintained ;

2. If indecent, immoral or illegal acts or practices have

been committed, with or without the consent of the

permittee ;

3. If such camp or colony has been conducted in an

otherwise illegal manner.

(E) Each application for a permit shall be accompanied

by a fee in the sum of $150.00. Each permit shall expire

upon the first day of October next after its issuance, un-

less sooner revoked or suspended. Each application for a

renewal thereof shail be accompanied by a fee of $50.00.

Upon any application for a renewal, the power of the

Board to grant or deny shall be the same as in the case

of an original application.

(F) Each permit shall be effective only at the location

named thereon. Such location may be changed only by the

Board upon application accompanied by a special fee

therefor in the amount of $25.00.

(G) It shall be unlawful for any permittee or any other

person for a fee or charge to permit or offer to permit the

public or any spectator to view the participants or any of

them in any nudist camp or colony.

(H) It shall be unlawful for any person to operate,

manage, or conduct any camp, colony, or other place of

resort, wherein three or more persons not all of the same

sex are permitted or allowed to commingle in the nude; or

wherein persons are permitted or allowed to view persons

of the opposite sex in the nude.”

~——

APPENDIX B.

_ “FRATERNITY ELysIA

“REGISTRATION ForM*

“Whereas, the pressure and speed of modern life is very

great, and the results of this pressure are seen in the great

number of breakdowns, nervous, mental and physical,

whereas, marked curiosity and distorted attitudes toward

sex and the human body constitute a large factor in those

breakdowns, and whereas, it has been conclusively proven

that there is an inherent reaction against the restraining

influence of clothes—and further, that a periodic release

seems best to be obtained in an environment in which

people may dispense with clothing and that such a practice

is beneficial therapeutically and better fits the individual

to carry on as an efficient, well adjusted member of so-

ciety—be it resolved that we, holding these beliefs and

findings in common, band ourselves together as the Fra-

TERNITY Erys1a, for the interchange of social and cultural

values and the permanent establishment of some retreat,

wherein we may be free from the prying eyes and preju-

dices of the public at large and may enjoy the health

giving sun and air freely and without restriction.’

(Preamble, Constitution and By-Laws, F raternity

Elysia)

“I, Bond, Robert & Anna, the undersigned, are fully

aware of the principles and practices of the Fraternity

Elysia, and believe them to be wholesome and beneficial,

mentally, morally, and physically, and so, herewith, make

application for admittance to the grounds and precincts

frequented by its members. In the event, such permission

*People’s Exhibit A.

es ee

is accorded me and I avail myself of it, I do herewith

pledge myself not to jeopardize, through any act, acts or

speech of mine, the position and security of any member,

and/or members of the group there present or of any of

the members of the Fraternity either while on the grounds

or in any other place, and I further pledge myself to such

conduct as shall not be offensive to any of the members

of the Fraternity.

“Signed this 3lst day of Aug. 1946. Age........ Married

X_ Divorced........ Single........ Children, Name—Age No

“Signature X Bob and Anna Bond Address 7149 No.

Bedford, L. A.

“Occupation Salesman Nationality Am Education

Grammar

“Note: In cases where one member of a couple wishes

to visit alone, express permission in writing must be given

by husband or wife. Both signatures on this form will

be sufficient.

“This will not be considered as an application for mem-

bership in the Fraternity until the signer has visited its

resort and the desire for affiliation is mutual. There is no

obligation on the part of the Fraternity to confer nor on

the part of the signer to accept membership.

“IMPORTANT: Cameras are not to be exposed without

the express permission of the director, and all cameras are

to be unloaded before leaving the premises. All negatives

are to remain in the possession of the Fraternity. No

photographs may be taken excepting under these condi-

tions.”