Naked at Lunch (31 page)
She was fined twenty-five dollars for an “act of indecency.” She appealed.
United States of America v. Jeanine M. Biocic
was tried in the U.S. Court of Appeals for the Fourth Circuit on October 4, 1990. Jeanine and her attorney, John Patrick McGeehan, felt that the regulations in the park and the county were vague and violated her constitutional rights.
One of her claims was that the charges violated her “guarantee of personal liberty rights.” This was rejected as the judges said, “No one would suggest that the First Amendment permits nudity in public places.” Which is a very parochial view of the First Amendment. Why can’t nudity be free expression? I mean, seriously. It is a kind of expression.
But the most interesting argument was her claim for equal protection. In other words, if it’s okay for men to go topless on the beach, it should be okay for women, and if it’s not, then that is gender discrimination. Jeanine lost, the court deciding that the gender “distinction here is one that is substantially related to an important governmental interest.” Which makes it sound as if her breasts were a threat to national security. The court clarified what the important governmental interest was by saying it was “the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones.”
So, essentially, if some random dude, like a park ranger, finds your breasts erotic in some way, then it’s your responsibility to cover them. It’s no longer your decision, but the dirty mind of a stranger, that decides if you’re indecently exposed or not. Why the court didn’t extend that ridiculous logic to men’s nipples, I don’t understand. If a homosexual man finds another man’s nipples erogenous, then for God’s sake don’t expose them willy-nilly in public.
But what might account for a legal decision in Virginia gets a whole different interpretation when it comes to New York State. Hearing a similar case, the court brought some logic to the discussion when it said, “One of the most important purposes to be served by the equal protection clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.”
The New York court pulled a one-eighty on the Fourth Circuit Court of Appeals, which is why you can go topless in New York City, you just can’t go bottomless.
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Law professor Ruthann Robson, in her book
Dressing Constitutionally
, looked at the
Biocic
decision and a similar case,
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this one a bare-breasted protest in Rochester, New York. The case ended up in New York’s highest court, where Judge Vito Titone argued that the “‘underlying legislative assumption that the sight of a female’s uncovered breast in 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.”
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According to Robson, “Titone’s concurring opinion stands as one of the most supportive judicial statements of the unconstitutionality of legally imposed gender differentials in required clothing.”
There are hundreds of cases like these across the country. Nudists might think they’re in a secluded location, strip down to enjoy an air bath, and the next thing they know a park ranger is creeping up on them. We live in a surveillance society; everyone is peeping at everyone else. Which is why a man sunbathing nude on his back porch in Georgia was cited for indecency and a dude hanging out naked in his own fenced-in backyard was arrested for appearing nude in public.
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Sometimes the nudists win, sometimes, like in Jeanine Biocic’s case, they lose. But I don’t really understand what the big deal is. Why is it against the law to be naked in public? In my interview with Mark Storey he said, “The Constitution doesn’t give you the right to not be offended.” Which to my mind drops an H-bomb on any legal argument against public nudity. Look at Spain: nudity is not against the law and yet you don’t see nudists swinging from the Sagrada Família in Barcelona and you don’t see sunbathers or skinny-dippers being charged with indecency or being labeled sex offenders. Is it because the Spanish just take a more responsible and mature attitude to living in society? In case you’re wondering, the answer is yes. And their wine is good too.
So if the Constitution doesn’t give you the right to not be offended, why isn’t nudity legal everywhere in the USA? If a prude gets his or her nose bent out of shape by seeing a few naked people swimming at the beach, so what? Aren’t we supposed to take a live-and-let-live approach to life? Land of the free and all that. Why do we have the right to keep and bear arms but we’re not allowed to bare our bottoms? And statistically speaking, death by seeing a penis or a breast is extremely low compared with handgun fatalities.
Like a lot of people in Los Angeles I don’t like rude drivers. I don’t want to be cut off or honked at or flipped the bird or stuck behind someone going the speed limit in the fast lane. I find that behavior offensive and potentially dangerous. But should we throw them in jail? What about restaurants that don’t put salt and pepper on the table? Or the women who wear short shorts and Ugg boots? Or that guy with the fake tan and the tight jeans who just seems like a total douche bag? We can all find things that offend us on some level. Bad table manners are offensive. If someone farts in an elevator, that is totally offensive. Do we throw those people into the legal system? What does it even mean to be offended?
In American legal philosopher Joel Feinberg’s
The Moral Limits of the Criminal Law
,
he defines offense by stating, “Offenses are usually unwanted emotional states and can vary greatly. Offenses include states of affront to the senses (e.g., an ugly sight, noxious smell, or grating sound); disgust; revulsion; shock to moral, religious or patriotic sensibilities; shame; embarrassment; anxiety; annoyance; boredom; frustration; fear; resentment; humiliation; and anger.”
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While offenses might be unpleasant, do they cause harm?
In 1859, British philosopher John Stuart Mill wrote in
On Liberty
“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
In other words, as long as they aren’t hurting anyone, society shouldn’t have the power to tell people what to do. People should be allowed to skinny-dip in the ocean or play volleyball on the beach or hike in the woods or even mow their lawns in the nude because, while it might offend some people, it causes no harm. It seems pretty cut and dry, right? Harm is easily definable: you damage someone’s person or property. And I think we can all agree that committing harm should come with criminal penalties. That’s the pact society makes with itself to keep public order. The naked guys in the Castro should be able to shake their dicks at cars all they want as long as they don’t cause traffic accidents. Because offense is different. Causing someone to be upset emotionally is not so easily definable, and since it’s subjective—what offends some people will delight and amuse others—it’s not fair to criminalize it, and it is arguably a right protected by the Constitution.
Case closed.
Like the Naktivist manifesto says, “Being naked is okay in all contexts.” Let freedom ring. You want to take in a baseball game at Yankee Stadium in the nude? Please bring a towel.
Of course it’s not that simple. Cases have been brought to trial, most recently an attempt to overturn San Francisco’s ban on public nudity by saying nudism was protected expression under the First Amendment. That failed because, according to U.S. District judge Edward Chen, nudity is not protected speech because it is “not inherently expressive.” Drop trou in public and go for a stroll and in all likelihood you will be arrested.
Since it seems, historically, that the people who are offended by nudity invariably cite some religious reasons to back up their claims, I wondered what the Bible
said about nudity. So I went to Got Questions Ministries, a “volunteer ministry of dedicated and trained servants”
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who answer questions from curious Christians like “How often should a married couple have sex?”
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and “Can a Christian be a nudist?” The answer probably won’t surprise you: “With few exceptions, the Bible presents nakedness as shameful and degrading.” They drop several biblical quotes as evidence, like Isaiah 47:3:
“Your nakedness shall be uncovered, and your disgrace shall be seen.” Or this gem from Revelation 16:15,
“Blessed is the one who stays awake, keeping his garments on, that he may not go about naked and be seen exposed!”
At least the Koran
uses fashion as a reason to get dressed: “O children of Adam, We have bestowed upon you clothing to conceal your private parts and as adornment.”
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The volunteer Bible scholars at Got Questions Ministries
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conclude with this: “Naturist philosophy ignores the results of the fall. Even in ‘asexual’ contexts, public displays of nudity dishonor God by pretending an innocence that no longer exists. A Christian should definitely not be a nudist or participate in nudist activities.”
But try telling that to Pastor Alan Parker and the clothing-optional congregation at the White Tail Chapel in Southampton, Virginia. Pastor Parker delivers his sermons and performs weddings and other ceremonies in the buff, labeling the clothing requirements of most churches “pretentious.”
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And then there’s the Christian Nudist Convocation, which hosts weekends of worship and Bible study at nudist resorts in Oklahoma, Tennessee, and Virginia.
Recently canonized Pope John Paul II might agree with the naked pastor. In his book
Love and Responsibility
,
the pope stated that, “There are circumstances in which nudity is not impure. If someone uses it to treat the person as an object of pleasure—even if it is by bad thoughts—he alone is the one who commits an impure act.”
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Which gets us back to the park ranger giving Jeanine Biocic a ticket not because she was doing anything indecent, but because he had sexual thoughts about her breasts and his thoughts made her actions indecent.
It always comes back to sex. People generally have sex when they’re naked so, ipso facto, if someone is naked they’re having sex, even if they’re just strolling through the forest by themselves. That scares people.
Mark Storey agreed. “A lot of people think if I want to sit here by myself, there’s got to be some sexual deviancy or some sexual issue there. They just don’t understand it. They don’t understand the sexuality they think I’m engaged in.”
In an article entitled “The Offense of Public Nudity” that appeared in
Nude & Natural
, Storey wrote, “Negative reactions to the sight of nude humans are learned behaviors. We are not born with an innate sense that nudity is bad, but acquire it through cultural conditioning.”
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How did we get conditioned to look at our own bodies in a negative way? And why are we so afraid of human sexuality? Where did
that
come from?
For some historical perspective I turned to Mara Amster, chair of the English department at Randolph College in Lynchburg, Virginia. Amster has done a lot of research looking at the role of women and sexuality throughout history, and is currently writing a book examining seventeenth-century prostitution and its relationship to pleasure, pornography, and profit. She’s also got a great sense of humor, a lot of really curly hair, and a PhD.
I told her what I was working on and how I was trying to figure out why our society has this idea that the naked body is offensive.
“When you first asked about it I was thinking about the Renaissance obviously, and England versus Italy, because I thought, well, the Italian Renaissance is all about the body, especially the male body. And in England, of course, it’s completely opposite. I mean, there’s no equivalent of the nude in English art at that time that I know of. But I’m not sure where that comes from necessarily, I have to say. Why do the Italians have such a different sense of the body? Both female and male nudes are everywhere. My sense is the body, for the English, just always remains full of fear.”
Italian artists have created some of the greatest nudes in history. Think of Michelangelo’s statue
David
—which is perhaps the most famous male nude of all time—or his fresco
The Creation of Adam
on the Sistine Chapel ceiling. Botticelli’s
The Birth of Venus
is a classic
nude and Titian’s
The Bacchanal of the Andrians
is my kind of raucous summer picnic. But there are hundreds more, from da Vinci’s kinky rendition of
Leda and the Swan
to the full-frontal pleasures of Giorgione’s
Sleeping Venus
,
and
later, artists like Caravaggio and Bernini painted famous nudes. It took a couple hundred years for England to catch up, and William Etty, under the influence of the Italian masters, managed to crank out some nude paintings. Yet despite the fact that the men and women in Etty’s paintings seem to always have their backs to the viewer, Etty was considered controversial.
