Law and Politics

Hands-Off the Desnuda of Times Square

August 26, 2015
By Larry Cary

I say let the desnuda of Times Square alone.  The law says that women can display their breasts in public.  And the law says that panhandling is protected by the First Amendment.

Proposals to deal with the desnuda of Times Square have included destroying the Times Square pedestrian plaza or penning them along with the working people dressed as cartoon characters, who like the women, are simply trying to make a living by begging on the streets of New York.

I worked in Times Square for nearly 20 years.  I was there when it was overwhelmed by drug dealers, seedy nudie bars and roving prostitutes.  It’s nothing like that today.  The presence of a few desnuda dressed up in red and blue paint with feathers in their hair does not threaten to bring it back to what it was.

I watched the Times Square clean-up unfold and its total replacement with an overwhelming eye-popping celebration of corporate consumer culture.  Today, in 100 feet high or more LED high-definition jumbotrons every pedestrian, regardless of how young they are, is bombarded by moving images of naked or revealingly semi-dressed men and women selling sex as underwear, lingerie, make-up and any number of other consumer products.

I admit that when I first spotted a desnuda I was startled.  And I fear they are being exploited when I saw them in a small group handing their tips to a man.  But I find it hypocritical that our political leadership is raging against a women trying to make a living by simply displaying her painted-over breasts while nothing is said about the massively large high-definition moving images of breasts popping through or falling out of sheer blouses or bras for sale.
More importantly, I worry about what damage may be done by this effort to our free speech rights, our right to equal treatment before the law, and the natural right of people to survive, if need be, by panhandling.

In 1992, in the case of People vs. Ramona Santorelli and Mary Lou Schloss, New York’s highest court ruled it violated the Equal Protection clause of the U.S. Constitution to criminalize the public exposure of a women’s breast.  The law made it a crime for a women to display "that portion of the breast which is below the top of the areola."  The arrested women argued that the law was “discriminatory on its face since it defines "private or intimate parts" of a woman's but not a man's body as including a specific part of the breast.”  The New York Court of Appeals agreed.  Can our government really justify banning or penning–in the desnuda when it has allowed the Naked Cowboy for 25 years to freely roam Times Square while wearing nothing but his "tighty-whiteys?” I should think not.
(I should say I was also equally startled by the Naked Cowboy when I first saw him.  But he, like the desnuda, now just fade into the background whenever I pass by.)

The court’s decision in Santorelli was predicated on its holding in a case called People v Price, in which the court ruled it was unlawful to criminalize “the noncommercial, perhaps accidental, and certainly not lewd, exposure” of a breast by a women “walking along a street wearing a fishnet, see-through pull-over blouse.”  In other words, a serious question exists when government wants to ban the desnuda but allow the commercial display of breast revealing garments and poses in Times Square’s jumbotrons.

Panhandling is also protected by the U.S. Constitution.  In 1993, in a case called Loper v. NYCPD, the U.S. Court of Appeals ruled that New York’s prohibition on begging for money is unconstitutional because it is free speech.  More recently, in a 2007 case, Brown v. Kelly, the federal court awarded plaintiffs more than $300,000 in attorney’s fees and costs when New York was found to have continued to arrest hundreds of people in violation of the law for non-aggressive panhandling.  The law does continue to prohibit threatening people or stalking them to intimidate, but the desnuda are not accused of such misconduct.  Rather, it appears that passersby want to take their picture and freely tip them for having had the opportunity.

Existing case law protecting commercial nudity from criminal statutes against obscenity also supports the view that the government does not have the right to prohibit or pen-in the desnuda.  In a 1978 decision of a Queens Criminal Court, in a case called People v. Ventrice, women dancing completely naked in a bar were found not guilty of criminal obscenity because the court held that merely being naked does not constitute obscenity under state-wide community standards.  If completely naked women dancing for tips in a Queen’s bar do not violate New York’s state-wide community standards, it is hard to imagine that the desnuda, who wear thongs and paint while merely walking and standing in Manhattan’s Times Square, could be found to violate obscenity laws.

Some commentators have suggested that the real forces behind the effort to go after the desnuda and the costumed characters are the real estate interests at Times Square.  They fear it is less likely that wealthy law firms and big corporations will rent space because of their presence in the Square.  If the desnuda and cartoon characters can be successfully banned by the real estate interests from what is really only trying to make a living by creative begging in the middle of a public space almost completely given over to promoting commercial enterprise though the display of sexual innuendo, our less creative beggars could be next.  That means the Iraq or Viet Nam war vet suffering from PTSD who is homeless and reduced to begging on our streets has skin in this game.  While it is better to have a job, I see homelessness and panhandling by less creative types all over New York City.  People need to realize that much more is at stake in this issue beyond whether a visitor is offended by the public display of a painted breast.

Larry Cary is a partner at the law firm of Cary Kane LLP.  He can be contacted at www.CaryKaneLegal.com.

August 25, 2015

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