What does a nude sunbather have to say?
PEOPLE V. HOLLMAN, 68 N.Y.2d 202, 500 N.E.2d 297, 507 N.Y.S.2d 977
Decided October 21, 1986
The public beach at Riis Park, Bay 1, had come to be known over the years as a "clothes optional" beach, although officially nudity was not permited. On two separate occasions, Robert Hollman gathered his wife and two small children, went to the public beach at Riis Park in Queens, took off all his clothes, and was arrested. The charge was "unlawful exposure" under the New York Penal Law, which states "A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed....This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment."
Mr. Hollman explained that his nudity was an expression of his belief in Naturist philosophy. This philosophy holds that "open social nudity promotes health, that it permits heightened awareness of human similarity and vulnerability and that it presents an alternative to the repression of puritanism and the degradation of pornography." Therefore, he claimed, punishing his expression of this philosophy through nudity violates his consitutional rights to free expression contained in the United States and New York State constitutions. The trial court convicted him anyway.
A unanimous New York State Court of Appeals affirmed the conviction after determining that there was no constitutional rights violation. They had to consider two questions in sequence.
When is conduct a form of speech or expression?
First they looked at whether Hollman's nudity can be considered symbolic expression coming within the protections of the Federal and State constitutions. They explained that conduct is sometimes expressive and entitled to the protection afforded speech as symbolic expression, for example the refusal to salute the flag or the wearing of black arm bands in the context of a Vietnam war protest. The test for when conduct is expressive is whether
(1) the conduct was intended to convey a particular message and
(2) the message would be very likely to be understood by those observing it, given the surrounding circumstances.
Ordinarily non-expressive conduct, like setting off fireworks, gambling and urinating in public, are not likely to pass part (2) of the test, even if the actor's intention may be expressive. Ordinarily expressive conduct, like displaying a flag in th customary manner, would pass part (2) of the test. The decision noted that nude sunbathing at the beach where nudity is commonplace is ordinarily non-expressive conduct, done typically for comfort or to get an even tan. Therefore, the Court said that is not symbolic expression entitled to constitutional free speech protection.
When can government prohibit speech or expression?
The Court went on to say that even if public nudity was symbolic expression or expressive conduct covered by the constitution, government can prohibit it. Echoing a well-settled constitutional principle, the court stated that "the First Amendment does not guarantee the right to declare one's opinion in any place, at any time and in any manner." Government can regulate or prohibit expression if banning it would further an important government interest so long as
(1) the government interest is not suppression of expression and
(2) the restriction on expression is no more than necessary to acheive an important government interest or goal.
In Hollman, the government's goal was to provide a recreational space for citizens and preserving the character of Riis Park for its intended use a place for family recreation. This, the Court said, was "important," meeting part (1) of the above test. And, the restriction prohibited only public nudity as a way to advocate Naturism, leaving open all other means of communication, so the restriction was limited enough to meet part (2) of the test.
Learning Activities
Terms to Know
· expressive conduct
· symbolic speech
Compare and Contrast
The United States Supreme Court in Tinker v. Des Moines set forth the First Amendment standard or test to be used when a school official seeks to prohibit any form of expression by students in school as follows:
""In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finidng and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained."
Pretend that students in school A would like to perform a play containing nudity in the school auditorium and the school said "no." Would the students be able to claim a free speech right to put on the play under the Tinker standard? What about under the standard set forth for non-school settings in Hollman?
Under Tinker they would have to answer the question as to whether such a play would materially and substantially interfere with school discipline and operation. Under Hollman they would first determine what the government interest in banning the play might be and whether it is "important." For example, students could find a government interest in promoting modesty and morality in school. The government interest cannot be to ban the expression of the idea that the nudity in the play is to convey. Then, they would have to consider whether the ban on the play is no more than necessary to acheive that interest or goal. Some students may suggest that the ban on the play is more than necessary and that maybe the nude scene be excised or played in a body stocking or other covering. Or, that advertisements for performances of the play contain a notice that the play contains nudity. The comparison of the Tinker and Hollman standards as applied in this example will likely show that the Hollman standard protects more expression than the Tinker standard.
Critical Thinking
What if the nude Mr. Hollman was not sunbathing on the beach was was involved in a Naturist demonstration? Would the Court of Appeals have decided differently on the question of whether his conduct was a form of expression?
Most likely, yes. The conduct would clearly have been intended by Hollman to convey a particular message and the message would be very likely to be understood by those observing it, given the surrounding circumstances, especially if the demonstration contained signs, pamphlets, and speakers about Naturism.