Dershowitz, Alan M.
Contrary to popular opinion
ISBN 0-88687-701-6
pg 57 - 59

NEW YORK NUDITY RULING WENT TOO FAR

I'm no prude, and I'm certainly not a censor. I've defended theater owners who want to show pornographic movies to consenting adults, nudists who want to cavort naked on specially designated beaches and gay adults who wish to have sex with other gay adults. But the recent decision of the New York Court of Appeals allowing women to "expose their breasts" in a Rochester public park went too far even for me.

The court ruled that since the New York nudity statute prohibited only the exposure of a woman's breast but not of a man's chest, it raised serious equal protection concerns that could be avoided by interpreting the statute so as not to "cover" - whoops! - the female breast.

Two concurring judges went even further, apparently accepting the argument of the women who bared their breasts as part of a protest against sexist laws that eroticize women's bodies. They argued the fact that some men in our society "may regard the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent...," is itself a reflection "of prejudice and bias towards women." In other words, men who are turned on more by women's breasts than by men's chests are sexist bigots, rather than typical heterosexuals. The concurring judges thus found that the statute violated women's right to equal protection of the laws. Under this approach, the state must now either require all men to cover their chests or permit all women to bare their breasts.

The lawyer for the "Topfree Seven" - as women who bared their breasts called themselves - said that this decision meant that women in New York state may now "sunbathe topless or even walk down the street without a top." Well, sunbathing topless at the beach is one thing, since people who go to beaches - especially beaches in certain parts of the Northwest and California - expect to see an occasional bared breast. But strolling down Broadway, Main Street or the local neighborhood thoroughfare is something quite different.

Civil libertarians have always distinguished between what adults may do in private or among other consenting adults, on the one hand, and what they may inflict on unconsenting citizens, on the other hand. This is a sensible and obvious distinction that goes back to John Stuart Mill. It explains why we have different standards for what may be shown inside a movie theater and outside on its marquee. It also explains why sex is a constitutionally protected activity in the bedroom, but not in the middle of the town square.

Women should certainly have the right to remove their tops and their bottoms in front of any adult who chooses to view them - whether in the bedroom, on the beach, or at the theater. But those who do not want to see the breasts of strange women also have rights, including the right to walk down Main Street without having to avert their eyes. Moreover, children walk down Main Street as well as adults, and their parents certainly have the right to decide whether their teen-age boys should or should not be exposed to the naked breasts of protesting women.

But what about discrimination between women's breasts and what the court called "the male equivalent." That, of course, begs the question: Is the male chest the "equivalent" of the female breast? Culturally, it is not - certainly not in most parts of this country or even in most parts of New York state. Is it really sexism to believe than men and women are anatomically different? Would the Topfree Seven protest against a law that distinguished between a stranger feeling a woman's breast and touching a man's chest? Would they support a law that required all competitive swimmers - male and female - to wear only Speedo bottoms? After all, if it is wrong to eroticize the female breast, should any woman have the right to insist on covering her breasts in situations where men did not have that right? If this is really about choice - a woman's right to choose what to wear - should we not also consider the choice of the majority of people not to be exposed to naked female breasts on Main Street?

We endanger freedom and equality when we trivialize it. The Supreme Court of the United States trivialized freedom last year when it upheld an Indiana statute that required topless dancers to wear "pasties" over their nipples when they danced in front of people who wanted to see them nude. And the New York Court of Appeals trivialized freedom and equality when it ruled that women have the right to walk down a busy street with their breasts exposed. That is why when I was asked, several years ago, to bring this kind of lawsuit challenging the Massachusetts nudity law, I turned down the case. But I will continue to defend the rights of any woman or man who wants to expose any part of his or her anatomy to any other willing adults.

July 1992