The Blog is now retired.
My posts after May 2014 on issues of “dressing constitutionally” can be found over at Constitutional Law Professors Blog and at the CUNY Academic Commons.
The posts from May 2013 – May 2014 remain available and searchable.
Cover of Puck magazine, 6 April 1901. “Columbia’s Easter bonnet / Ehrhart after sketch by Dalrymple.” via
Two House Representatives have introduced a bill to regulate the use of photoshop in advertising. Garnering applause from gender justice advocates, H.R. 4341: Truth in Advertising Act of 2014 would require the Federal Trade Commission (FTC) to report to Congress a strategy reducing images in media and advertising that alter a person’s face or body’s physical characteristics.
Several groups set out on the Hill to raise support for the bill. One supporter told reporters that “if photoshopped ads told the same bold-faced lies that they do on images, there would be regulatory action.” But many are not concerned with the misleading nature of the ads — rather, as The Eating Disorders Coalition sees the bill, it is a way to prevent the “negative health outcomes that have been directly linked to these types of images.” Co-sponsoring the bill, Rep. Ileana Ros-Lehtinen, a Republican from Florida, told reporters “the link between false ads and eating disorders becomes increasingly clear every day.”
But the bill is not without opponents. The Association of National Advertisers told Time the bill is “too broad” and goes “too far,” noting that the FTC already has the power to regulate “unfair and deceptive ads.” Enforcement of any such photoshop regulation would raise 1st Amendment considerations, and there is question on how much photoshopping would be too much. One commentator opined that Justice Stewart’s well-known obscenity quote, “I know it when I see it,” would become apt precedent. But unfortunately, the challenges will likely never be made — the bill has a 1% chance of successful passage. Even with such a low likelihood of passage, the bill is seen by many as a success for raising the critique and amassing awareness of the issue.
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In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state’s statutory prohibition of “secretly photographing or videotaping a person ‘who is nude or partially nude,'” G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women’s skirts (“upskirting”).
The defendant had argued that if § 105 (b ) “criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad,” but because the court “concluded that § 105 (b ) does not criminalize the defendant’s alleged conduct,” it did not reach the constitutional questions.
Yet, as in many cases, the court’s statutory interpretation does occur in the shadow of the constitutional challenge. The court reasoned that the statute “does not penalize the secret photographing of partial nudity, but of “a person who is ... partially nude” (emphasis in original). Courts have long struggled with definitions of “nudity” – – – recall the United States Supreme Court’s recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor. [More on this issue is in Dressing Constitutionally].
Additionally, the court reasoned that the statutory element of in “such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed” did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley. The court rejected the Commonwealth’s argument emphasizing the “so” in “so photographed” – – – that “because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt” by interpreting “so” as simply referential.
The court concluded that at the
core of the Commonwealth’s argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of “upskirting” conduct at issue in the case. Given the court’s opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.
[image of Marilyn Monroe’s skirt via; cross-posted at Constitutional Law Professors Blog]
Assemblyman Ken Zebrowski (D-New City) has reintroduced a bill that would increase penalties for “public lewdness” in New York State. The bill provides for felony conviction and addition to the sex offender registry for such acts as exposing oneself where a child under 14 is “likely to be present.” The same bill passed the State Senate last year, but failed in the Assembly. The text of the bill is here.
We discussed the bill and some of its potential consequences here.
Citizens of Spokane, Washington, are gathering signatures for a proposed anti-nudity initiative. The initiative would create a misdemeanor, punishable by up to one year in prison, for exposure of “at least half of a female breast, any part of of a female areola or nipple, or any part of male or female genitals or anus at any place the public has a right to be or see.” The Spokane City Council rejected similar rules in October, leading supporters to seek voter approval through the initiative process.
The nudity ban movement reportedly arose as a result of “Topless Tuesday,” a promotion for local espresso chain “Devil’s Brew,” now known as “XXXtreme Espresso.” Workers at the event wore “G-strings and pasties” to serve coffee drinks to the public. The event caused concerned citizens to worry about Spokane’s family values. City Councilman Mike Fagan, sponsor of the failed October proposal, reportedly said, “If we’re going to promote Spokane based on family values, we’re going to let this continue?”
The initiative implicates more than the “family values” concern about what children might see in a public place, however. The proposed ban is overinclusive, if aimed at the larger issues of nudity or exploitation in marketing (see, for example, allegations of prostitution at a similar Washington State “bikini espresso stand”). The ban also criminalizes women who staff espresso stands. Stand owners, who presumably crafted these dress policies in a bid for increased profits, likely wouldn’t face misdemeanor charges under this proposal.
And the idea of people voting on the expressive rights of others is troubling. In Spokane, however, both sides of the issue agree that a public vote is best. As reported, ban opponents on the City Council are in favor of letting the public decide. And so is Sarah Birnel, owner of Devil’s Brew/XXXtreme Espresso, who told the council that “voters should set nudity standards.” Referring to the vote, she is quoted as saying: “As an American, this is what we should stand for.”
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The Pensacola anti-camping ordinance is being called an anti-blanket ordinance that operates to prevent the homeless from using a blanket or other means to keep themselves warm.
While blankets may not be expressive and thus within the First Amendment – – – as I analyze over at the Constitutional Law Professors Blog here – – – there should be equality concerns. Or, as the petition directed against the ordinance contends, humanity concerns.
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Hair, “The American Tribal Love-Rock Musical,” came to the stage recently at the Hoogland Center for the Arts in Springfield, Illinois. As reported, the musical was presented complete with a “controversial nude scene.” Director Jen Wallner reportedly included the scene because it shows vulnerability: “They’re showing themselves for everything they have, just like the hippies did.”
While this particular production does not seem to have garnered the attention of concerned citizens, as did a recent production of Love! Valour! Compassion! in Grand Rapids, Michigan, the musical has had its share of controversy, resulting in the 1975 Supreme Court decision in Southeastern Promotions, Ltd. v. Conrad. There, municipal authorities in Tennessee, seeking to safeguard the “best interests of the community,” denied an application to produce Hair. As discussed in Dressing Constitutionally, while the promoters of Hair won their case, the Court avoided deciding on the constitutionality of applying nudity and obscenity laws to the musical. Several months after Southeastern Productions, the Court in Erznoznik v. City of Jacksonville, applied First Amendment protections to expressive nudity against a local ordinance prohibiting the display of nudity in films shown at drive-in theaters.
Dressing Constitutionally explains the Court’s separation of nudity from obscenity in cases such as Miller v. California and Erznoznik, and identifies the areas where continued government regulation of nudity in artistic productions is possible: in otherwise regulated mediums, like television; when regulation occurs in a government funding scheme, as seen in the Love! Valour! Compassion! situation; and when the regulation targets the “secondary effects” of the nudity.
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A production of Terrence McNally’s play Love! Valour! Compassion! at the Actors’ Theatre in Grand Rapids, Michigan, has drawn criticism for its onstage nudity, raising questions about public financing of artistic pursuits. Actors’ Theatre, although an independent organization, reportedly received $19,000 in funding from the public Grand Rapids Community College and the group performs at GRCC’s Spectrum Theatre. The play, according to a favorable local review, “follows a group of eight homosexual males” who discuss AIDS, infidelity, and “other ‘real people’ situations.” At least one character is nude for “a good portion of the play.”
The problem, according to some, is that GRCC is endorsing nudity as entertainment, with taxpayer money. Concerned citizen Joan Ridderbos, who reportedly did not see the play but did hear about it from friends at church, made the complaint to a meeting of the board of trustees. Trustee Richard Ryskamp agreed, having previously accused GRCC funding of being used to “mock Jesus Christ” and “popularize homosexual conduct.” One suspects the upset is about something more than nudity on stage.
The Grand Rapids controversy and its articulation in concern about nude entertainment highlights another controversy discussed in Dressing Constitutionally. In 1975, the Supreme Court decided Southeastern Promotions Ltd. v. Conrad, a case about the musical Hair, which also features onstage nudity. As discussed in the book, it is clear that a production of Love! Valour! Compassion! is protected by the First Amendment. The GRCC’s budget, however, is fair game for the political process, and concerned citizens may attempt to censor the stage through a denial of funding, recalling efforts in the 1980s and 1990s to defund the National Endowment for the Arts and NEA v. Finley.
Trustee Ryskamp, meanwhile, noting that artistic abilities are not “the issue,” has declined an invitation to see the Actors’ Theatre’s next production: Venus in Fur.
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Statutes criminalizing the wearing of masks often have a “Halloween exception.” But in some states – – – Louisiana, for example – – – the exception has an exception for a certain type of person.
Here’s the statute, §14.313:
A. No person shall use or wear in any public place of any character whatsoever, or in any open place in view thereof, a hood or mask, or anything in the nature of either, or any facial disguise of any kind or description, calculated to conceal or hide the identity of the person or to prevent his being readily recognized.
B. Whoever violates this Section shall be imprisoned for not less than six months nor more than three years.
C. Except as provided in Subsection E of this Section, this Section shall not apply:
(1) To activities of children on Halloween, to persons participating in any public parade or exhibition of an educational, religious, or historical character given by any school, church, or public governing authority, or to persons in any private residence, club, or lodge room.
(2) To persons participating in masquerade balls or entertainments, to persons participating in carnival parades or exhibitions during the period of Mardi Gras festivities, to persons participating in the parades or exhibitions of minstrel troupes, circuses, or other dramatic or amusement shows, or to promiscuous masking on Mardi Gras which are duly authorized by the governing authorities of the municipality in which they are held or by the sheriff of the parish if held outside of an incorporated municipality.
(3) To persons wearing head covering or veils pursuant to religious beliefs or customs.
D. All persons having charge or control of any of the festivities set forth in Paragraph B(2) of this Section, shall, in order to bring the persons participating therein within the exceptions contained in Paragraph B(2), make written application for and shall obtain in advance of the festivities from the mayor of the city, town, or village in which the festivities are to be held, or when the festivities are to be held outside of an incorporated city, town, or village, from the sheriff of the parish, a written permit to conduct the festivities. A general public proclamation by the mayor or sheriff authorizing the festivities shall be equivalent to an application and permit.
E. Every person convicted of or who pleads guilty to a sex offense specified in R.S. 24:932, is prohibited from using or wearing a hood, mask or disguise of any kind with the intent to hide, conceal or disguise his identity on or concerning Halloween, Mardi Gras, Easter, Christmas, or any other recognized holiday for which hoods, masks, or disguises are generally used.
Masks generally prohibited, except on Halloween (or Mardi Gras or other holidays) except for those who have to register as sex offenders.
More about masking as well as persons who must register as sex offenders because of public nudity or indecent exposure is in Dressing Constitutionally.
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In a complaint filed in state court earlier this month, Krigsman v. City of New York, Jessica Krigsman seeks money damages for her unconstitutional arrest for not wearing a shirt in a public park in Brooklyn. The complaint alleges that when the police officers approached Ms. Krigsman on the park bench and told her to put on a shirt, she
“politely told the police officers that in 1992, in People v. Santorelli, 80 N.Y. 2d 875 (1992), the New York Court of Appeals held that it is legal for a woman to be topless in any public place in New York State where it is legal for a man to be topless.”
Statute of Athena
Apparently, the police officers did not credit Ms. Krigsman’s legal expertise, because they arrested her and took her to the precinct where she was held for approximately five hours and issued a summons for “Obstruction of a Sitting Area,” a charge that was dismissed when she appeared in court in October.
Certainly, Ms. Krigman’s lawsuit clears one of the hurdles that can make an award of damages for a constitutional violation difficult: the requirement that the law at the time of the incident be clearly settled.
As discussed in chapter 2 of Dressing Constitutionally, Santorelli involved activist Nikki Craft and other feminists, who had staged an action protesting topless laws as applied to women in a Rochester park; they were arrested for public nudity based upon exposure of their breasts. A trial judge rejected their equal protection challenge, while dismissing the charges against them based upon a First Amendment analysis of their publicized protest in the park, but an appellate court reversed. When the case reached New York’s highest court, the court’s succinct memorandum opinion neatly held that the statute was not intended to apply to the type of situation before it, but only “topless waitresses.”
It was concurring Judge Vito Titone who wrote the opinion that is best remembered. He essentially accused his colleagues of historical inaccuracy, arguing that the “topless waitress” statute was a precursor statute and that the new provision under which Craft and others were convicted “was aimed at filling a gap” to clearly proscribe “nude sunbathing by ordinary citizens” and “either men or women appearing bottomless in public places” Joined by one other judge, Titone’s opinion argued that the court should have taken the equal protection issue more seriously and suggested that any recognition of a governmental interest of protecting public sensibilities that are based on a gendered distinction is itself a constitutional problem. For Titone, the “underlying legislative assumption that the sight of a female’s uncovered breast in a public place is offensive to the average person in a way that the sight of a male’s uncovered breast is not” is an assumption that replicated gender bias rather than confronting and eradicating sex inequality. Titone’s concurring opinion stands as one of the most supportive judicial statements of the unconstitutionality of legally imposed gender differentials in required clothing.
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