The naked city
Nude ghettos, Boy Scouts, and the ins and outs of taking your clothes off in public.

By Heather Smith

IT WAS A long time ago, children, and I was walking down the long, dusty trail to my campsite at the Michigan Womyn's Music Festival, when I was passed by a flatbed truck full of gleefully hooting festival arrivals. As the truck rumbled by, a respectable, elderly woman – the sort of woman one is accustomed to find superintending a Sunday school or volunteering in a soup kitchen – whipped off her industrial-strength, peach-colored, foam- and whalebone-laden JCPenney Ladies' Department bra and waved it above her head, yelling, "Freedom!" Her bosoms, opalescent and blue-veined, tumbled out like a school bus-crushing avalanche. And I, a demure girl from the Midwest, born into a religion that frowns on coed swimming, stood there as the truck passed, with the faux-nonchalant look of the only MFA at the monster truck rally.

We all grow up seeing naked people – on late-night cable, in certain magazines, on field trips to the art museum. Even Barbie, once you peel those hot-pink culottes off her rubbery legs, is a semireasonable facsimile – enough to make you avert your eyes momentarily when you find one lying in a gutter covered with leaf mold, like an outtake from a David Lynch film. And anyone who stays in San Francisco long enough is going to see naked people on parade. Gay Day, Folsom Street Fair ... even Critical Mass now has its naked contingent. The nekkid and mobile have become a powerful force in modern-day San Francisco.

But the thing is – unless we grew up on some nudist macramé commune – most of us are used to seeing nudity only in certain designated settings. Ghirardelli Square, for example, is a tourist ghetto, seemingly created for the purpose of drawing in and containing tourists. Nudist retreats, nude beaches, nude magazines, representations of nymphs being ravished by Zeus, and the occasional fetish-friendly street festival function in much the same way, as a nudist ghetto. That's where the naked goes, and that's where the naked stays.

But what about ordinary, out-and-about-the-town nudity? Civic nudity, even? Naked lollygagging in Dolores Park? What – while we're at it – about naked errand running?

We San Franciscans like to think of ourselves as an enlightened people. When naked bottoms go jogging past us during Bay to Breakers, we point and say, "Ha, ha, ha! Only in San Francisco!" as though those wobbling tuchuses were a magic talisman keeping Mr. and Mrs. John Q. Public from moving in next door and putting one of those cement geese with the little outfits out on the front step. Nonetheless, we're still a lot more likely to chance upon a Playboy pictorial featuring women playing golf, dressed in nothing but tam-o'-shanters, than we are to encounter actual naked golfers, no matter how pleasant the weather down in Golden Gate Park.

But did we not usher in the Age of Aquarius? Why is it that Berkeley had a Naked Guy and we never did? Admittedly, it's a bit chillier on this side of the bay, but so what? We could have a Seasonally Naked Guy. A Naked Guy with a little mink stole. A Naked Guy with mittens. Why is it that San Franciscans are so ready to cover their bad naked selves with glitter and dance like pixies at Burning Man but so rarely feel – or at least act on – the urge to cover their bad naked selves with glitter to return a video or go out for tapas?

One typical response to such questions goes along the lines of "Nobody wants to see your naked bottom sashaying down Main Street, anyway." To some, nakedness may seem freewheeling and charming; others are in no mood to watch your testicles swinging in the breeze before breakfast. And yet Main Street is bustling with activities that may or may not appeal to the average viewer. Nobody, for example, wants to see your dog in a sweater, but I don't see you getting arrested for it.

Perhaps the simpler question, while we're on the subject of arrests, is not "Is civic nakedness a good, just, appropriate, and/or aesthetically appealing activity to embark on in our fair city?" but rather "Is it legal?" This is something of a tangled issue, as it turns out, and more than enough to keep us occupied.

Your skin, and how much of it is allowed to be showing, is usually regulated at the county level – the theory being that different communities have different standards concerning which body parts are "not for sharing." That's why the amount of glitter covering lap dancers varies so much from city to city. San Francisco, predictably, heavily legislates stripper glitter, but as far as we can tell, there are no municipal ordinances whatsoever regarding not-for-profit, everyday nudity. We scoured the Police Code and found nothing. We queried the City Attorney's Office and were referred to the California Penal Code. And none of the lawyers and police officers interviewed for this story seemed to be aware of any local code.

Plenty of other cities have them. In New York, for example, women are legally entitled to be just as topless as men, which means New York could theoretically be filled with topless women wearing carpenter pants and drinking beer on fire escapes, jogging down the street with headphones on, and sunbathing in European-size Speedos on boulders in Central Park. It's not, regrettably – but still, it's legal. Is it legal here in our fair, sunny Babylon? It depends on whom you talk to.

For you see, having no laws of our own, we are forced to go by California state law, which goes something like this:

California Penal Code, Section 314: Every person who willfully and lewdly, either: 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby ... is guilty of a misdemeanor.

From which text one might draw the conclusion that standing in front of the Transamerica pyramid in nothing but bunny slippers and a tiara would automatically be illegal, owing to its being a public space. Theoretically, though, you could be watering the posies in your backyard with no clothes on and be entirely within the bounds of the law. However, should a troop of Boy Scouts march past and see you engaging in pantsless horticulture, your actions would magically transmogrify into illegality – but only if said troop of Boy Scouts were offended. Or annoyed. And, because state law has traditionally grouped public nudity with things like flashing and public masturbation, if you persisted in being naked and the Boy Scouts persisted in being annoyed, you could eventually be convicted of public indecency and registered as a sex offender in the state of California, which might make for interesting conversation at cocktail parties but could make matters difficult when it comes to, say, making friends with the neighbors or getting a job involving small children.

Making matters even more interesting is the 1972 case of Chad Merrill Smith on Habeas Corpus. Nude beachgoer Smith, irate at the prospect of having to pay a $100 fine and register as a sex offender for sunning himself on a remote stretch of sand, took his case all the way to the California Supreme Court. And that august entity eventually very generously declared that there was nothing inherently lewd, or even particularly sexual, about just having no clothes on.

Despite the beach-centric nature of that case, redoubtable Berkeley lawyer Bill Simpich – who has done pro bono defense work for Debbie Moore and Marty Kent of Berkeley activist theater troupe the X-plicit Players – says that Section 314 plus the 1972 ruling make it possible to scamper around California like a little naked pixie, scattering naked dust hither and yon.

"Of course it's legal!" Simpich chortled jovially over the telephone. "In order to convict you according to state law, they have to prove that your behavior was willful and lewd, and 1972 proved that there's nothing lewd about just being naked." However, this only applies as long as you don't fall afoul of any park (state or national) or municipal codes. Or any irate citizens and respectable businesspeople who demand the police do something about your hedonism. And this is assuming you're willing to be arrested by anyone unaware of or unfazed by the 1972 ruling – and to fight your case in court.

Back in the early '90s, when Moore and fellow X-plicit Player Nina Schilling began going around in the altogether, they would carry a copy of Section 314 and organize mini-teach-ins on California state law with any officers who decided to arrest them. And Simpich won every case he took defending the Players. Until August of '93, that is, when – during a veritable heyday of civic nakedness, with the Naked Guy posing in Playgirl and even attending a Berkeley City Council meeting in the buff – the council passed a law making it illegal to be naked anywhere in Berkeley within public eyesight. (The Players continued to win some cases with the help of juries reluctant to convict a naked theatrical troupe, but they eventually received a municipal conviction in 2001.)

Interestingly enough, naked activists have good things to say about San Francisco. Kent of the X-plicit Players says his group has performed here several times and had no major problems with the police. They've hung out naked at Adobe Books and Dolores Park and were even berated by the owner of Pancho Villa Taqueria on 16th Street for dressing before coming inside to order tacos. Marvin Gordon, a Mohawked, habitually birthday-suited SoMa performance artist, also has no troubles to report, with the exception of one tense harmonica performance at Julie's Supper Club, where he was caught between an irate patron demanding he put his clothes on and an equally fervent event promoter demanding he take them off.

However, it bears considering – and repeating – that just because you might be able to ward off a conviction in a court of law, and just because a bunch of naked artists got away with it, doesn't mean you're not going to get arrested in the first place.

Simpich has neither dealt with nor heard of any public nudity cases in San Francisco, and he has demonstrated something of an interest in the matter. San Francisco criminal defense attorney Nanci Clarence, however, has been approached by a few prospective clients who were ticketed in areas like the Presidio that are managed by the Golden Gate National Recreation Area (all of them eventually decided to pay up rather than deal with the cost and effort of managing a federal court case). According to Clarence, the GGNRA's federally employed Park Police, often out-of-towners, have a reputation for getting a little testy when confronted with decadent Californians engaging in a little decadent Californian sunbathing. And unlike state park rangers, the feds don't follow the "Cahill directive" (named after former California parks director Tim Cahill), which dictates that rangers should politely ask you to put your clothes on before issuing you a ticket.

I asked around at the San Francisco Police Department whether people often get picked up for just being naked, and the answer was no, according to Lt. Gary Jimenez of the Mission precinct and Sgt. Bill Griffin of the Park precinct. It seems that nearly everyone arrested for public nudity is doing something in addition to being naked that renders them arrest-worthy. For example, the last naked person Griffin booked was not only naked but also lying down on the BART tracks. People freaking out on PCP, in particular, tend to rip off all their clothes. "Sometimes it gets too hot in their space suit," Griffin explained.

In fact, almost all the SFPD officers I spoke with volubly expressed their lack of interest in arresting your naked self. The phrase "This is San Francisco!" was indignantly and frequently used.

And indeed, parade and festival nudity continues unabated, and nobody seems to be up in arms about it: 1993, for example, was the last year anyone was arrested for running naked in Bay to Breakers.

No one at the SFPD, however, seemed to be interested in giving his or her wholehearted stamp of approval to your jogging pants-free into the sunset, or even into the Safeway on Church and Market Streets, for that matter. The consensus: a warning would be issued previous to any arrest attempt. A few officers admitted that a complaint about, say, naked sunbathers on the roof of an apartment building was unlikely to be followed up on unless traumatized children were somehow involved. It's also useful to remember that, since nudity is a misdemeanor offense, an officer actually has to see you naked in order to arrest you or write you a ticket. So if you're a speedy dresser (like the clever Bay to Breakers participants who chose to cover up before crossing the finish line), you might not get into any trouble at all.

All of which, admittedly, puts anyone devoted to the concept of civic nudity in a quandary. Much is forbidden, but few are arrested, and some of it isn't exactly illegal, but only if you can prove it in a court of law. One day you might skateboard down Market Street in nothing but a turban made of bubble wrap, and everyone would just point at you and say, "Ha, ha, ha! Only in San Francisco!" Possibly tourists would snap your picture to show their relatives in Des Moines. Another day, you might be instructed by a member of the SFPD to clothe yourself immediately – and get hauled down to the jailhouse if you declined.

The general guidelines seem to be as follows: In most semi-private situations, like a rooftop or a backyard, chances are good you can let your freak flag fly as long as the weather holds. Certain nudity-ghetto parades and street fairs have proved to be pretty much a free ride to unprosecuted pantslessville in recent years, but you might not have the same luck at the Fillmore Block Party that you would at the Folsom Street Fair. In public arenas like city parks or the beach, you may be asked to cover your private parts if someone brings the law down on you, and a ticketing and/or arrest will likely follow if you should choose to decline in favor of free speech and whatnot. On city streets, the likelihood of those events taking place increases severalfold. You're taking your chances with the GGNRA folks, and you probably shouldn't take it into places like Nordstrom's at all, even if you really are there to buy yourself a nice summer frock.

Consider arming yourself with Section 314 and a copy of the Chad Merrill Smith case and the phone number of a good lawyer. And until the day when your naked tuchus is entirely free and legal and everybody knows it, the most prudent course of all would be to keep a spare pair of pants handy.

May 19, 2004