Dear body freedom supporters,

we are having another protest on January 17th at 12 noon – right before the court hearing – in front of the Federal Building (see details above). This is our last chance to address the people, the city government and the media before Judge Chen hears our case. This protest is very important. It should also get a lot of media attention. Please be there if you can. If you were already planning to go to the hearing come a little early and join our protest.

To shed some light on what the hearing is about here is a quote from Christina DiEdoardo:

A lot depends on Judge Chen. He can:

1) Grant the injunction in whole (i.e. stop the city from enforcing the
ordinance until the final outcome of the case) or in part (stop the City
from enforcing parts of the ordinance); or

2) Deny the injunction. If he does that, we can appeal his decision to the
Ninth Circuit, but the Ninth Circuit has very limited grounds on which it
can overturn a denial (i.e. only if Judge Chen abused his discretion,
relied on an erroneous legal premise or clearly erroneous findings of
fact). In that event, while our case would continue, the
ordinance–barring extraordinary relief from the 9th Circuit–would go
into effect on Feb. 1. Or;

3) He can “take the matter under submission”, which is judicial-speak for
“let me think about it” or sometimes “I’ve made a decision, but I don’t
want drama in my courtroom, so I’ll issue a written opinion later when all
parties are out of my hair”.

I’m cautitiously optimistic about Thursday. Obviously, there’s a lot of
bad precedent from the U.S. Supreme Court regarding commercial nude
dancing that gives us an upstream current to swim against (although not
directly relevant to our issue, there’s no published Supreme Court law
*directly* on point to our claim). However, even those cases recognize
that nude dancing is expressive speech protected by the First Amendment.
As I see them, the City’s ordinance has two main flaws:

1) Its scope–unlike the standard ordinance against nude dancing (e.g.
requiring nipple pasties and g-strings in bars that serve alcohol) the
City’s ordinance bans ALL nude expressive speech in public spaces like
streets and sidewalks and

2) Its lack of content neutrality. Basically, when dealing with
expressive speech the guys trying to shut down the speech (the City) want
to bring the ordinance within the precincts of O’Brien v. United States
(which was the case that upheld a law making it illegal to burn draft
cards during the Vietnam era. We, on the other hand, want to bring the
ordinance within the bounds of Johnson v. Texas (the 1989 case striking
down a law that banned flag burning as a means of protest, since the
approved way of disposing of old threadbare flags is through a ceremony
where they are ritually burned and the ashes buried. I know, it’s very
Viking, but things you learn as an Eagle Scout :)).

The City loves to cite the Pap’s A.M. v. City of Erie case from the U.S.
Supremes despite the fact that (a) as a plurality decision it created no
new law and (b) the ordinance in Erie *was* content neutral, since the
only exception was breastfeeding mothers. In our case, by contrast, the
*entire* ordinance is inoperative *if* the expressive speech is taking
place during a City-approved event. Combine this with the statements in
Johnson that free speech will *frequently* piss people off and that’s not
a reason to ban it *and* the city’s past history of passing crazy laws
(from the 1940s to the 1960s they actually banned the disabled from being
seen in public) to “avoid” umbrage to residents who didn’t want to see a
particular group, I think they have some ‘splaining to do. 🙂

Fingers crossed and looking forward to Thursday! Avante!

Sincerely,

Christina