205ARGUE

121. The "body language" of the nude human form has extraordinary symbolic and communicative power
which should be protected by the First Amendment.
Examples may be seen in painting, photography, sculpture, drama, cinema, and other visual forms of
communication throughout history. 188
122. The Supreme Court has ruled that people can't be forced to communicate ideas they oppose (for
example, saying the Pledge of Allegiance). It has also ruled that clothes can be a protected form of free speech (for
instance, students and public employees had the right to wear black armbands to protest the Vietnam War). It is
unconstitutional to force Naturists to express conformity to ideas of modesty and body shame that they disagree
with, by forcing them to wear swimsuits at the beach.
As attorney Eleanor Fink says, "If people are allowed to wear the clothes of [Nazis], should they not also
be allowed to wear the clothing of the Creator?" 189
123. The courts have thus far permitted the publishers of pornography to express attitudes which are
exploitative of women, on the grounds that this is protected free speech; but it has been unsuitably reluctant to grant
the same protection to the natural expression of body freedom through casual, non-exploitative nudity on the beach.
124. Clothing is both publicly expressive and privately symbolic, connoting identity in a particular cultural
group. Restricting the state of dress of nudists is no less restrictive than prohibiting any other cultural group from
wearing the clothing particular to their group. Preventing nudists from going nude is equivalent to preventing a
person of Scottish descent from wearing the family colors, or preventing a priest from wearing his robes.
125. With the emergence of national organizations promoting nudism as a doctrine, nude recreation may
eventually come to be seen as a protected medium of speech expressing that doctrine, and as an example of
protected free association. 190
126. The Ninth Amendment makes it clear that no freedoms shall be denied that are not specifically
prohibited. 191 Thus, mere nudity is not illegal except where there are specific laws that prohibit it.
Most laws prohibit only lewd conduct, not nudity per se; and there is in fact no universal legal prohibition
against nudity on public land.
127. Many prohibitions against nudity stem, historically, from the political climate of the early Christian
church. 192 Even today, much of the objection to nudism is based on religious principles. The constitutional
separation of church and state should make this an invalid argument.
128. Extensive legal precedent suggests that laws requiring women, but not men, to conceal their breasts
are sexist, discriminatory, and unconstitutional. 193
For example, in 1992, the New York Court of Appeals, the state's highest court, unanimously overturned
the conviction of two women found guilty of exposing their breasts in public. The ruling held that the state's antinudity
law was intended to apply only to lewd and lascivious behavior, not to "non-commercial, perhaps accidental,
and certainly not lewd, exposure." Herald Price Fahringer, the women's lawyer, said that the ruling meant that
women in New York State could sunbathe topfree or even walk down the street without a top, as long as this was not
done in a lewd manner, or for such purposes as prostitution. Judge Vito Titone pointed out that women sunbathe
topfree in many European countries, adding: "To the extent that many in our society may regard the uncovered
female breast with a prurient interest that is not similarly aroused by the male equivalent, that perception cannot
serve as a justification for different treatment because it is itself a suspect cultural artifact rooted in centuries of
prejudice and bias toward women." 194 This ruling, however, is just one of many statutes and legal precedents
nationwide that uphold the position that breast exposure is not inherently indecent behavior. 195
Additional legal support for Naturism. 196