205ARGUE

"tourism's fastest growing sector." 175 Nudism, in the United States, brings in about $120 million per year in direct
revenues alone. 176
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 concerns 182 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