Last month, Boulder district attorney Stan Garnett (who weighs in today about medical marijuana) argued that the Boulder City Council should pass what he called "a simple public-nudity ordinance" regarding participants in events like the World Naked Bike Ride and the Naked Pumpkin Run. That way, scofflaws wouldn't be charged with indecent exposure -- a crime requiring placement on the sex-offender registry.
The 2005 Naked Pumpkin Runners could be in a lot of trouble five years later.
Well, at 6 p.m. tonight, the council will hear the first reading of just such an ordinance. But attorney Judd Golden, representing the Boulder branch of the American Civil Liberties Union, sees the entire exercise as misbegotten. In his view, "there are tools we can use to deal with public disorder that don't focus on measurements to see if the areola of a woman's breast is exposed or checking people's underwear."
Golden doesn't see any reason why Boulder should rush into passing such an ordinance, particularly given current action at the statehouse. "We support what's going on in the legislature, where they're trying to limit the requirement that a conviction for indecent exposure means mandatory placement on the sex-offender registry," he says. "I think Boulder should wait to see what the state does and then act accordingly."
That's hardly Golden's only objection to the proposed ordinance, however. He breaks his complaints down into four major areas that he doesn't feel the staff has adequately addressed.
Number one "is the equal protection issue," he says. "Boulder has one of the strongest nondiscrimination policies around. But with this ordinance, they have, for the first time, decided to treat men and women differently. For example, they have criminalized the showing of the areola of the nipple for women. That has not been criminalized in Boulder before.
"And they don't discuss how to deal with trangendered or gender-variance people. And when you start specifying male and female body parts, that ought to be part of the discussion."
Second on Golden's list are First Amendment issues -- the notion that nudity might be used as a form of speech or expression, political or otherwise.
On that topic, "we are presenting the council with a comparison with what the police chief [Mark Beckner] said about public nudity in 2008 and what he's saying now. The differences are night and day. When they had sixty Naked Bike Riders back in 2008, the response from the community was three calls, two of which weren't even from Boulder, complaining about it -- and in the Daily Camera, Chief Beckner said, 'I think our community values are pretty tolerant of civil disobedience.' He perceived no community outrage or concern about these events. He said if the community had the political will to stop it, fine, but that wasn't what he was seeing. And now, in 2010, he's saying we essentially have to crack down on this and that he doesn't buy the argument that being naked is political speech."
On that last subject, he points out that "the ACLU has prevailed in litigation on behalf of people engaging in a political demonstration where nudity was an integral part; it took place in Florida, and the same principles apply. But the council hasn't been provided with any analysis on the issue."
Number three? Golden feels "the discussion here has set up a false choice. The city and the district attorney are saying, 'The only thing we can possibly charge these people with is indecent exposure, so we need a lesser offense.' But there are a lot of state and local laws other than indecent exposure that can be used against people who engaging in conduct, whether they're clothed or unclothed, that disrupts the public order.
"If someone runs across the football field wearing enough to cover up their private parts and disrupts the game, that's against the law. What difference does it make what they're wearing? It would be the same thing if a whole bunch of bicyclists wearing next to nothing ride through town and obstruct passage through the streets. There are laws against disrupting public order that way -- but they seem to think the only thing they can do is charge them with indecent exposure."
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The fourth concern for Golden centers on "the general idea of public order and community sustainability, which is something the council has to address. And where is the community demand here? An article covering this came out in the Daily Camera a few days ago, and of something like 140 comments, there might have been two or three that said, 'This is a good idea.' Most of them echoed what we're saying: What about equal protection? The idea of live and let live? We have the position of our police chief saying we need to do this because some people find it offensive, but these are unsupported psycho-social statements."
These gripes aren't meant to suggest that the ACLU thinks any nudity-oriented laws are automatically anathema; Golden supports statutes criminalizing what he calls "sexually oriented nudity." But he sees the potential punishments contained in the proposal -- up to ninety days in jail and a $1,000 fine -- much too harsh, particularly in light of the portions of the measure he doesn't think have been adequately explored.
"We're saying to the council, don't pass it on the first reading, either because you decide you don't want to pursue it or because you want to send it back to staff for further analysis," he asserts. "We need to evaluate how this applies to the Constitution and why we need it now."