734 F.2d 608

Corp., and Gary Bryant, Plaintiffs-Appellants,
CITY OF MIAMI, FLORIDA, a Municipal Corporation, etc.,
Janet Reno, State Attorney, Defendant-Appellee, Cross-Appellants.

No. 82-5963.

United States Court of Appeals,
Eleventh Circuit.

June 18, 1984.
Rehearing Denied July 24, 1984.


South Florida Free Beaches, Inc. (South Florida) and Gary Bryant sought a declaratory judgment and injunctive relief in the United States District Court for the Southern District of Florida, alleging that various state statutes and city of Miami ordinances unconstitutionally infringed on their right to sunbathe in the nude. After a non-jury trial, the district court held that nude sunbathing was not a form of expression protected by the first amendment. However, the district court did conclude that portions of both Fla.Stat. Sec. 877.031 and Miami Ordinance 37-12 were unconstitutionally overbroad. We affirm.

The bare facts in the record show that Bryant and other members of South Florida for several years regularly swam and sunbathed in the nude on a public beach within the corporate limits of the city of Miami. Although a number of statutes and local ordinances restricted such conduct, they were not consistently enforced. Recently, however, Miami officials expressed an intent to prosecute any person who violates these statutes and ordinances. Dade County and the state of Florida, while disclaiming any current intent to arrest the plaintiffs, contend the laws are valid and enforceable. The plaintiffs assert that the city's threat of prosecution chills the exercise of their first amendment right of expression. Nude sunbathing, the plaintiffs claim, is the practice by which they advocate and communicate their philosophy that the human body is wholesome and that nudity is not indecent.

As noted above, the district court, in a revealing evaluation, held that "nude sunbathing per se is not a constitutionally protected activity." Examining the challenged laws for vagueness, the district court noted that although some of the language may be unclear in the abstract, they clearly proscribed nudity. Employing an overbreadth analysis, the district court upheld all the challenged statutes and ordinances, except that part of Fla.Stat. Sec. 877.03 proscribing actions "as of a nature to corrupt the public morals, or outrage the sense of public decency ...."

South Florida and Bryant initially assign as error the district court's failure to accord constitutional protection to their activities. Because they allegedly are advocating an idea, they maintain that the government cannot absolutely prohibit the form chosen to express it. Although that may be true in other contexts, we agree that "[n]udity is protected as speech only when combined with some mode of expression which itself is entitled to first amendment protection."  All of the reported cases adhere to this view that the constitution does not protect unassociated nudity from exposure to governmental limitations. In Williams v. Kleppe, 539 F.2d 803 (1st Cir.1976), the court sanctioned a ban on nude sunbathing in a national park. In response to the plaintiffs' first amendment arguments, the court agreed with the district court's conclusion that "no rights of free speech can be said to have been involved here." Justice Douglas, in Roth v. United States, 354 U.S. 476 (1957), wrote that "[n]o one would suggest that the First Amendment permits nudity in public places ...."  The Supreme Court cited that statement in Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).

Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work .... In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent exposure statutes.

The plaintiffs point to a number of cases for the proposition that nudity, as a means of expression, is constitutionally permissible. All of these cases, however, involved nudity in combination with a protected form of expression. Nudity alone "does not place otherwise protected material outside the mantle of the First Amendment." As stated by the court in Chapin, supra, none of these cases supports a First Amendment right to sunbathe nude. In each, the question was whether activities otherwise protected by the First Amendment ... lose their protection when associated with nudity. Nude sunbathing, however, is not associated with dance, literature, or any other standard mode of expression.  Stripped of constitutional protection, nude sunbathing is subject to legitimate governmental proscriptions. Thus, we hold that the first amendment does not clothe these plaintiffs with a constitutional right to sunbathe in the nude. Neither do they possess a constitutional right of associating in the nude. They remain able to advocate the benefits of nude sunbathing, albeit while fully dressed....

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