Nudists to sue over Wiener law

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Photo by Mike Koozmin/SF Newspaper Co.

Sup. Scott Wiener's ban on public nudity hasn't even come to a vote at the full board, but the nudists who oppose it are already planning to sue. A group of five plaintiffs, including former mayoral candidate George Davis and Gypsy Taub, who disrobed at a hearing on the issue, are arguing that the city lacks the legal authority to enact the ban, which they call a violation of protected free speech.

Christina DeEduoardo, the group's attorney, told me she plans to file this week in federal court in San Francisco. "We're going to ask for a temporary restraining order to prevent the supervisors from enacting this law," she explained.

It's not easy to get a court to pre-emptively block a law that hasn't been approved, but DeEduoardo said she's going to argue that state law pre-empts San Francisco from taking this type of action. "When a municipality does something at odds with state law, there's a reason to prevent it," she said.

California law already regulates lewd behavior, and the state courts have consistently held that mere nudity is not a violation of that statute. "Nothing says the city has to power to regulate dress," she argued. "It's the equivalent of the Board of Supervisors saying that in October the only colors you can wear are black and orange."

Even if the state doesn't pre-empt San Francisco's right to ban nudity, DeEduoardo said, there's a First Amendment issue here: "This purports to ban all nude expression. My clients engage in nudity as speech. The law is way over-broad." There's even an equal-protection argument: Wiener's legislation specifically exempts major city events, like Bay to Breakers and the Folsom Street Fair -- but those things cost a lot of money. "So the city's saying if you have the money for a permit, you can engage in nudity, but if you can't afford that, and you just want to go au naturel, then you are a criminal."

Matt Dorsey, spokesperson for the City Attorney's Office, told me he doesn't expect any sort of injunction. "State law is very clear that injunctions can't be granted to prevent a legislative act," he said.

If a federal judge won't issue a restraining order, the nudists are going to sue to overturn the law the minute it passes. So there's likely to be a long, expensive legal battle -- and it seems so silly. Particularly since it's getting chilly out and the rainy season is about to start, and Mother Nature will be dealing with the naked guys pretty quickly.