The young women approach tourists in Times Square and pose for photos,
wearing nothing but a thong and a feathered headdress, their bare breasts painted with patriotic colors in a thin simulation of a bikini top. Then they
ask for a tip.
Are they performance artists?
Are they panhandlers?
And, perhaps most important, can the city move against them without
violating their right to free speech?
Those are among the questions the courts may have to answer if Mayor Bill de Blasio of New York pushes ahead with plans to rein in the activities of the women and their handlers, who have come under fire
from business leaders and politicians worried they are driving away tourists.
Whatever action the city takes to control the women, it will face legal
challenges at every turn. Civil rights lawyers argue the women are
bare-breasted panhandlers, and so they are protected, first by two state
high-court rulings that made it legal to go topless and to panhandle, and then
by the free-speech clauses in the state and federal constitutions.
So complex
is the issue that Mr. de Blasio, who has angrily vowed to put a stop to the
practice, suggested on Thursday that one option would be to simply tear out the
pedestrian plazas where the women operate.
The mayor
met this week for almost three hours with police and city officials on how to
restrict the women’s activities before deciding more study was needed, his
aides said. On Thursday, he announced that he had formed a task force of city
officials, local politicians and business leaders and gave it until Oct. 1 to
come up with strategies.
“It’s
complicated, and he wants to get it right,” the mayor’s spokeswoman, Karen
Hinton, said.
At least
temporarily, Mr. de Blasio seems to have gotten his wish. Times Square on
Thursday was virtually free of the women, who have adopted the label desnudas,
or Spanish for naked, and who were apparently lying low after all of the
critical attention.
But if the
sudden high-level mobilization — even Gov. Andrew M. Cuomo, a fellow Democrat,
has called for their removal — seems extraordinary for a dozen or so women in
body paint, it is partly because their presence stirs up many questions about
civil rights, as well as prurience and gender equality.
Some see a
double standard at work. While a state law limits the ability of women to work
topless, there is no similar law regarding shirtless men. One well-known
example of the latter is the Naked Cowboy, who appears in nothing but his
underwear, hat and boots (and his guitar), and has become as much a part of
Times Square as its giant billboards.
Even some
social media sites, perhaps the new public sphere, maintain the same
distinction; some users of Instagram, for example, have called on the site to
drop its restrictions on pictures of women’s nipples.
A 1992 Court
of Appeals ruling on the state law said that women could indeed be topless in
public, but let stand the prohibition against public female toplessness for
commercial purposes. The court also did not settle the issue of whether the law
discriminated against women, though some judges believed that it did.
Some legal scholars say that ruling, in a case of seven women who
purposely tested a topless ban in a
Rochester park, seems to leave a door open for the city to arrest the
desnudas for being topless if it could be proven they are engaged in a
business. They note the United States Supreme Court has held that limits on
nudity at erotic dance clubs are not violations of free speech.
“It sounds like it is commercial,” said Eugene Volokh, a First Amendment
expert at U.C.L.A. School of Law. “The city could say if you are naked in a
public place for a commercial purpose, we are going to apply the law to you.”
Holly Van Voast, an artist who was arrested in New York several times for going topless
and filming the reaction of passers-by, sued the Police Department and obtained
a $40,000 settlement. She said the Court of Appeals should revisit the law and
finally settle whether the double standard for men and women in New York is
discriminatory.
She also said she did not view the activities of the desnudas as true
artistic expression. “It’s obviously commercial,” she said. “That’s not
supposed to be right as far as the ruling goes.”
City officials, however, say arresting the women for indecency is not an
option. That is because they can make a strong argument that they are street
performers, exempted by the state law and protected by the First Amendment, the
officials said.
Furthermore, the state’s highest court also ruled in 1992 that panhandling was a form of protected speech, so unless the women
aggressively solicit money, or harass people, they cannot be arrested, the
officials said.
“It’s their argument that they
are artists, or street entertainers, and not just someone hanging around
half-naked,” said Larry Bryne, the deputy police commissioner for legal
matters. “As long as they are performers exercising their First Amendment
rights in a lawful way, it’s not a criminal law-enforcement issue that we can
address.”
Instead, the mayor’s new task force will look into limiting the number
of desnudas or restricting where and when they can operate. Similar “time,
place and manner restrictions” have been placed on street vendors in crowded
parks.
“They have
First Amendment protections,” said Zachary W. Carter, the city’s corporation
counsel, “but these protections are not without limitations.”
Civil rights
lawyers argue in response that limiting where the women can ask for tips might
still be judged a violation of their free speech. Courts have held that such
restrictions cannot discriminate against a group because of its message. But
the mayor and other city politicians have said the women’s partial nudity is
the reason they would be asked to stay out of certain areas, said Ronald L.
Kuby, a civil rights lawyer.
“They have
already dug themselves a constitutional hole by declaring bare breasts are the
problem,” Mr. Kuby said.
Norman
Siegel, former director of the New York Civil Liberties Union, said the city
would also have a hard time arguing in court that the women were blocking
traffic or the entrances of buildings, which are common reasons given for
putting limitations on speech. “These women can stand there all day” and have
people take their pictures, Mr. Siegel said.
Carl
Weisbrod, the city planning commission chairman and co-chairman, along with
Police Commissioner William J. Bratton, of the new task force, said the group
would also consider stepping up police enforcement against desnudas, as well as
costumed characters, who cross the line from asking for donations into
harassment. Changing the physical layout of the area to alter foot traffic, or
making it a city park, where panhandling is not allowed, are also options being
considered.
“I do believe
it’s going to require a blend of approaches,” Mr. Weisbrod said.
That
enforcement has already begun. On Wednesday night, the police arrested
Christopher Olivieri, who works with a team of desnudas, on a warrant for an
unrelated harassment charge.
Times Square
was largely devoid of the painted women on Thursday, as some said they were
avoiding the area for now because of negative press. One 24-year-old desnuda
said the city’s effort to regulate the desnudas was not only unfair, but also a
waste of resources.
“They want
to criminalize us when we’re not doing anything wrong, and there are bigger
problems in the city,” she said.
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