By: Angela Marshall
Public nudity banned
Models for life drawing classes, topless sunbathers, and actors in theatrical productions like "Hair" should take note that under a new Town of Hempstead law, they are opening themselves up for arrest every time they bare their breasts, buttocks or other private parts. The law, which was passed unanimously Tuesday, September 12, prohibits anyone from "knowingly or intentionally" appearing in a state of nudity in a public place.
While the law is targeted at strip clubs, it does not rule out arrests for other forms of nudity except breast feeding mothers and children under 10. Some lawyers, including town councilman N. Scott Banks, feel the law is too broad. Mr. Banks approved it anyway. "Hopefully down the line the board will consider measures that would make this law better," he said.
Fellow Democrat, Dorothy Goosby, also thought the law was too broad and at one point in the hearing said she would abstain. "It's not that I don't want a law that would ban us from having establishments that we don't need. But I want to make sure that when we do pass a law it's specific."
However, when voting time came, she too voted to pass the law.
Fourth Precinct Police Inspector Frank Matzen spoke in favor of the law and said that the police would be professional in the manner in which the law was enforced. Asked by Mr. Banks if under the law a resident performing the play "Hair" at Merrick's Stage Theatre could be arrested for the show's nude scene, Mr. Matzen replied, "You wouldn't see me going there with any sort of a task force."
However, that is not good enough for lawyers like Rockville Centre's Ron Burke who believes that laws should not be left to the interpretation of police.
"They shouldn't leave it up to the police to decide whether a particular public exposure is legal or not," Mr. Burke said. "And they have made it illegal... but it may be that they, indeed, do not intend to enforce it."
The town left the law broad because it is based almost verbatim on an Erie Pennsylvania law that, when challenged, went all the way to the United States Supreme Court and was upheld. "The reason that [the U.S. Supreme Court] could uphold the law was that it was content neutral," said Town Attorney Joe Ra. "It was not aimed at a particular set of conduct."
The Erie case was brought by the owners of an adult establishment called Kandyland who said the law violated their dancers' First Amendment rights to freedom of expression.
The Supreme Court ruled that the ban did not violate First Amendment Rights because "By its terms, it regulates conduct alone. It does not target nudity that contains an erotic message; rather it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity."
The fact that a preamble to the law, similar to language used in the Town of Hempstead press releases concerning the law, states that the law's actual purpose is to ban adult entertainment is moot because the court said it believed the preamble to mean that banning that behavior was only "one purpose" of the law and not its total focus.
Establishments like Bare Necessities in Island Park are free to continue to operate as long as their performers wear pasties and g-strings.
"Because the Erie law has already been upheld by the United States Supreme Court, we are very confident that our own statute will stand up to any and all challenges," Town Supervisor Richard Guardino said in a press release. "There is no doubt that the proliferation of so called 'adult entertainment' establishments has had a deleterious effect upon communities across Long Island. Now town government has another weapon in our arsenal with which to fight any attempt to degrade our quality of life in Hempstead Town."
The Nassau County chapter of the Civil Liberties Union criticized the town for "regulating adult consentual behavior."
Barbara Bernstein, the chapter's executive director, said "Nobody goes [to strip clubs] by accident. They know they are going there."
Despite town assurances that the statute is suit proof, lawyers have pointed out that the Pennsylvania law was never challenged for unequal protection for men and women. While the law bans the showing of both male and female genitals, it only bans parts of women's breasts and not males. In past, at least two New York Appelet Court Judges, the highest court in the state, have found that this treatment is unequal under the law. In a 1992 case filed by women protesters, Judge Titone found that a New York State law banning nudity "creates a clear gender-based classification, triggering scrutiny under equal protection principles."
