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114 - 128 Constitutional support for Naturism.177
114. In a free society such as the United States, one's lifestyle should not be dictated by anyone else (majority or otherwise), especially if that
lifestyle does not infringe on anyone else's rights.
In the words of Justice Sandra Day O'Connor: "Our Constitution is designed to maximize individual freedom within a framework of ordered
liberty." 178
115. The Constitution was, in fact, written to protect the rights of minority points of view. ~ This principle alone should justify the right to
recreate peacefully in the nude without government interference.
Justice William O. Douglas, for a unanimous court in 1972, wrote: "These amenities have dignified the right of dissent and have honored the
right to be nonconformists and the right to defy submissiveness. ~ They have encouraged lives of high spirits rather than hushed, suffocating silence."179
116. The Constitution has been interpreted to protect individual freedoms except where they are overridden by a "compelling state
interest." ~ It is never the responsibility of individuals to justify their freedoms. ~ It is rather the responsibility of government to justify any restriction of freedom.
Justice Douglas enumerated three levels of rights: "First is the autonomous control over the development and expression of one's intellect,
interests, tastes, and personality. ~ Second is freedom of choice in the basic decisions of one's life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children. ~ Third
is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf."180 ~ Douglas would permit
no state restriction of the first level of freedom; only narrow restrictions on the second; and in the third, "regulation on a showing of 'compelling state interest.'"
117. Naturism has always claimed that nudity offers "freedom from bodily restraints." ~ Such freedoms may only be restricted in the case of
"compelling state interest;" if none can be shown, the restriction is invalid.
Unfortunately, though the courts have "recognized as a protectible, if minor interest . . . an individual right concerning one's own appearance
and lifestyle," especially where supported by tradition and custom, in the case of public nudity such protection is not "fundamental" or directly "constitutional" 181 and thus can be overruled or limited by other considerations, such as environmental concerns182 or "community standards." 183 ~ Often the reference is to moral principles. ~ These can usually be shown to be "overbroad" by constitutional standards, because they prohibit innocent behavior (such as skinnydipping) along with behavior of legitimate government concern (such as lewd conduct).184
118. The Constitution has repeatedly been interpreted to protect the right of individuals to associate with others of similar philosophy, and also to
raise their children in the context of a particular philosophy. ~ This principle protects the right of nudist families to associate and recreate in the nude.
119. The First Amendment guarantees the right to freedom of expression. ~ This protects every other form of clothing, and should protect the right
not to wear clothing as well.
120. Recent court decisions in Florida, New York, and elsewhere have upheld nudity as part of the expression of free speech.185
Unfortunately, the courts have consistently concluded that mere nudity per se (for example, nude sunbathing on a public beach), without being
combined with some other protected form of expression, is not protected as free speech under the first amendment.186 ~ The courts have distinguished between protected First Amendment beliefs and actual conduct based on those beliefs, arguing that going nude on a beach is "conduct" rather than merely the natural state of a human being.187
121. The "body language" of the nude human form has extraordinary symbolic and communicative power which should be protected by the First
Amendment.
Examples may be seen in painting, photography, sculpture, drama, cinema, and other visual forms of communication throughout history.188
122. The Supreme Court has ruled that people can't be forced to communicate ideas they oppose (for example, saying the Pledge of Allegiance). ~ It
has also ruled that clothes can be a protected form of free speech (for instance, students and public employees had the right to wear black armbands to protest the Vietnam War). ~ It is unconstitutional to force
Naturists to express conformity to ideas of modesty and body shame that they disagree with, by forcing them to wear swimsuits at the beach.
As attorney Eleanor Fink says, "If people are allowed to wear the clothes of [Nazis], should they not also be allowed to wear the clothing of
the Creator?" 189
123. The courts have thus far permitted the publishers of pornography to express attitudes which are exploitative of women, on the grounds that this
is protected free speech; but it has been unsuitably reluctant to grant the same protection to the natural expression of body freedom through casual, non-exploitative nudity on the beach.
124. Clothing is both publicly expressive and privately symbolic, connoting identity in a particular cultural group. ~ Restricting the state of dress
of nudists is no less restrictive than prohibiting any other cultural group from wearing the clothing particular to their group. ~ Preventing nudists from going nude is equivalent to preventing a person of Scottish
descent from wearing the family colors, or preventing a priest from wearing his robes.
125. With the emergence of national organizations promoting nudism as a doctrine, nude recreation may eventually come to be seen as a protected
medium of speech expressing that doctrine, and as an example of protected free association.190
126. The Ninth Amendment makes it clear that no freedoms shall be denied that are not specifically prohibited.191 ~ Thus, mere nudity is not illegal except where there are specific laws that prohibit it.
Most laws prohibit only lewd conduct, not nudity per se; and there is in fact no universal legal prohibition against nudity on public land.
127. Many prohibitions against nudity stem, historically, from the political climate of the early Christian church.192 ~ Even today, much of the objection to nudism is based on religious principles. ~ The constitutional separation of church and state should make this an invalid argument.
128. Extensive legal precedent suggests that laws requiring women, but not men, to conceal their breasts are sexist, discriminatory, and
unconstitutional.193
For example, in 1992, the New York Court of Appeals, the state's highest court, unanimously overturned the conviction of two women found guilty of
exposing their breasts in public. ~ The ruling held that the state's anti-nudity law was intended to apply only to lewd and lascivious behavior, not to "non-commercial, perhaps accidental, and certainly not
lewd, exposure." ~ Herald Price Fahringer, the women's lawyer, said that the ruling meant that women in New York State could sunbathe topfree or even walk down the street without a top, as long as this was not
done in a lewd manner, or for such purposes as prostitution. ~ Judge Vito Titone pointed out that women sunbathe topfree in many European countries, adding: "To the extent that many in our society may regard
the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent, that perception cannot serve as a justification for different treatment because it is itself a suspect
cultural artifact rooted in centuries of prejudice and bias toward women." 194 ~ This ruling, however, is just one of many statutes and legal precedents
nationwide that uphold the position that breast exposure is not inherently indecent behavior.195
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