# Petition for Writ of Certiorari — Glassey v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 790

## Text

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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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1324%3A1. Public record. Not legal advice.