Weighing in on the San Onofre Beach Issue

N Magazine published Part 1 of a comprehensive feature article on the battle for continuing clothing-optional access to San Onofre State Beach in the Spring 2010 issue. Coincidentally I happened to sign on to the forums at the AANR website last evening and learned that quite a few nudists are extremely upset that AANR did not in their opinions do enough in helping The Naturist Society in the battle to preserve the rights of nudists to continue using San Onofre as a clothing-optional beach. I for one am not in the camp of those ready to take AANR to task over the issue, in spite of the fact I think I can understand and sympathize with the frustrations that other nudists feel about this particular issue. Yes, it may be true that AANR did not do much in the way of saving San Onofre and certainly they did not partner with NAC in the legal battle. But I think for several reasons, anyone who had the expectation that they would doesn't really understand the history of AANR.

AANR is the Conservative Nudist Organization

The fact is, AANR has pretty much always been and in my estimation will continue to be a very conservative nudist organization. It is not an activist organization in any way, shape or form. The strategy of the organization is primarily to work within the framework of public relations to cast nudism in the most favorable and non-confrontational light possible. The leadership believes that this approach is the best approach to gaining the favor of non-nudists and eventually gaining wider acceptance of nudist culture within the broader culture. Confrontation is simply not the style of the organization and I am sure is seen by the leadership as counter-productive to their strategy.

Rank and file nudists have frequently disagreed with the AANR approach which some have even gone so far as to label appeasement. Many nudists believe that AANR cares about nothing but the member clubs and sits idly by without lifting a finger when nudist rights are threatened on any other front. Actually that is to a great degree the truth and it really should not come as a surprise to anyone. In fact, disagreement with the way AANR does business is the very reason that The Naturist Society came into existence.

TNS is the Activist Organization

TNS through its political adjunct, the Naturist Action Committee has always been the nudist activist organization. Proactive and confrontational when necessary, NAC is the organization that sees its mission as advancing and protecting the rights of nudists to access and use public lands for responsible nude recreation. Personally I think NAC did an otstanding job trying to save San Onofre despite the fact that in the end the efforts failed. If you read the article in N Magazine I think you will readily understand that the refusal of AANR to join the legal action was a non-issue.

The loss of clothing-optional access to San Onofre State Beach, at least superificially, is simply attributable to two things. Currently the California Department of Parks and Recreation is headed by a director, Ruth Coleman, who is nothing more than a figurehead. She permits DPR to be run by her underlings and she has no real input into the policies of DPR beyond rubber-stamping the decisions made by those beneath her.

The N Magazine article clearly revealed that Ms. Coleman's minions intercept written communications intended for her, withhold information and largely insulate her from any policy making decisions. Others within the department decided that the long-standing Cahill policy would be ignored and that clothing-optional access to San Onofre would no longer be permitted. As long as Californians, especially California nudists suffer an ineffective political appointee to "run" DPR who is obviously either unable or unwilling to lead the department, the future prospect of any clothing-optional beach access in the entire state is in serious doubt.

The Real Reason Behind the San Onofre Debacle

Instead of laying the blame at the feet of national nudist organizations, nudists in this country need to wake up to the fact that the responsibility for advancing and protecting the rights of nudists to access public lands lies not with the national organizations but with individual nudists. I find it alarming and more than a little disturbing that nudists seem content to sit back and expect the national organizations to fight the battles and then simply hand over the victories while the average nudist does little or nothing. I have a few questions for the nudists who are so critical of AANR is the San Onofre issue, especially those who live in California.

• How many letters have you written to governor giving your opinion about the lack of leadership in DPR?


• How many letters have you sent or phone calls have you placed to your local government representatives to convey the truth about nudism/naturism and how important you feel it is that our culture be permitted equal access to public lands?


• How many personal visits have you made to the offices of your elected government officials where you have stated politely but firmly that you will not support or vote for representatives who show themselves to be unfriendly towards naturist issues?


• How much have you contributed to organizations like NAC and the Body Freedom Collaborative?


• Are you a dues paying member of AANR or TNS?

The truth is, nudists are an invisible subculture in this country to large extent. So much so that it is actually a miracle that we have any access to public lands and what little we have is due to the generous past contributions of those like the founders of the Free Beach Movement. We can continue to sit on our collective duffs and indulge in the fantasy that the national nudist organizations are going to do all the work and then we can watch our freedoms being eroded and taken away until the legacies of people like Lee Baxandall are nothing more than footnotes in nudist history.

The withdrawal of clothing-optional access to San Onofre need not stand. If it is a battle important enough to nudists to win, then they can take back the beach. The image above is that taken April 6, 1997, of the demonstration by Australians to secure clothing-optional access to Belongil Beach, Australia. The same tactics that work in Australia will work here. Instead of relying on backroom, handshake deals too easily broken, like the Cahill policy to secure our freedoms, nudists need to organize, demonstrate and become a noticeable thorn in the side of backward thinking politicians and political bureaucrats until we get what we deserve. A failure to do that in essence means we really deserve nothing more than what we got with the San Onfre decision.

In conclusion, look at the past histories of minority cultures in our nation. None of them were ever given anything. Those that were successful decided what they wanted, chose their priorities and their battles and they got involved. No longer content to be pushed aside by the government or society, they suffered indignities, lost jobs, made sacrifices and faced the threats of fines and arrest. In the end however, they got what they wanted, that which was rightfully theirs. Until nudists and naturists are willing to accept personal responsibility for their own destinies, San Onfre will be the rule and not the exception. If that is not a priority for us then we might as well get used to being cloistered behind the protective walls of AANR resorts until those too are taken away. San Onfre will either be a wake up call, or it may very well be the death knell of naturists rights.

Ellen Makkai: Self-Styled Interpreter of the Constitution - Conclusion

Picking up where I left of on Friday, here is how I see the key elements of Texas v. Johnson applying to public nudity and why I firmly believe as does the Naturist Action Committee, the ACLU and many others, that public nuidty is a First Amendment issue;

• Protected speech does not end at the spoken or written word but includes conduct which may be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. Conduct sufficiently imbued with elements of communication fall within the scope of the First and Fourteenth Amendments.
  
  
• Though not specifically spelled out in the decision, I think it clearly states by inference that just because a particular conduct might be “offensive” even “extremely offensive” and might be offensive to many, even the majority, does not give power to the state to regulate or criminalize such conduct on the basis of that alone.
  
  
• By inference, if the burning of the American flag does not meet the test of Brandenburg v. Ohio, used by the court in reaching its decision in this case, that the state may only punish speech that would incite “imminent lawless action.” Clearly mere nudity in the same way would not also pose any “imminent threat of lawless action.”
  
  
• In the same way that the American flag has no “uniqueness” by way of special protections enumerated in the constitution that would give rise to it being considered a special “exception” to the rights guaranteed under the First Amendment and therefore giving rise to a compelling interest on the part of the state to preserve it by making it unlawful to burn the flag, in the same way neither is there any evidence that the framers of the constitution intended that public nudity be a special exception providing any compelling legal interest on the part of the state to suspend the rights afforded under the First Amendment by prohibiting or making the practice of it unlawful.
  
  
• Just as the court found that Texas already had a statute that prohibited breaches of the peace and could be used to prevent disturbances without punishing flag desecration, Texas as well as most of the other 49 states have laws that prohibit and can be used to prevent lewd conduct without punishing mere nudity. Both the United States Supreme Court as well as the supreme courts of various states has held on numerous occasions that mere nudity, in itself, is not obscene or lewd. Important legal precedents have been established for how the courts are to interpret lewdness or indecency. In Re Smith, 7 Cal.3d 362 (1972) for instance, the Supreme Court of the State of California ruled that "mere nudity in California does not constitute indecent exposure in violation of state statutes, absent additional conduct intentionally directing attention to the genitals for sexual purposes." The court specifically used “masturbation” as an example of the kind of conduct they were speaking of. Clearly a person simply sun-bathing in the nude on a public beach does not “lewdly” expose his private parts within the meaning of the applicable statute.
  
  
• In its decision, the Supreme Court reaffirmed the precedent from United States v. O'Brien, 391 U.S. 367 (1968) that state regulation of speech-related conduct is permissible only; (1) if it is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression and; (4) if the incidental restrictions on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Under the sovereignty theory (except for those powers expressly and specifically granted to the federal government under the Constitution, states retain all other powers to among other things protect the order and morality of it citizens), statutes and ordinances that prohibit or seriously restrict nudity are common in nearly all fifty states. Since the states retain all such powers and because nudity is not an expressly guaranteed constitutional right and because the states have the power even to limit guaranteed rights as long as they articulate how such limits serve an important public interest, courts have routinely found that the public’s interest in morality trumps any implied right to express one’s views by not wearing clothes. However, in light of Texas v. Johnson, this seems to be a patently faulty line of legal reasoning. The test quite commonly applied to the reasonableness of the state limiting constitutionally guaranteed rights is there must be some compelling need to do so in the interest of public safety, public health or maintenance of order. I think it is most difficult on the part of legislators to ascribe a “harm” that mere nudity might cause any person, even a person who finds nudity offensive, to justify regulating and criminalizing such conduct. And as stated in Texas v. Johnson, when laws already exist that prohibit and can be used to prevent breaches of the peace, there is no constitutionally recognized powers on the part of the state to single out such conduct as mere nudity to prohibit and punish.

My home state, Texas has three laws specifically calculated to restrict and prohibit public nudity;

PC 21.07. PUBLIC LEWDNESS. (a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his:

(1) act of sexual intercourse;
(2) act of deviate sexual intercourse;
(3) act of sexual contact; or
(4) act involving contact between the person's mouth or genitals and the anus or genitals of an animal or fowl.
(b) An offense under this section is a Class A misdemeanor.

PC 21.08. INDECENT EXPOSURE. (a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act. (b) An offense under this section is a Class B misdemeanor.

PC 42.01. DISORDERLY CONDUCT.

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;
(3) creates, by chemical means, a noxious and unreasonable odor in a public place;
(4) abuses or threatens a person in a public place in an obviously offensive manner;
(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001, Local Government Code, or in or near a private residence that he has no right to occupy;
(6) fights with another in a public place;
(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(9) discharges a firearm on or across a public road;
(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or
(11) for a lewd or unlawful purpose:

(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;
(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person's own through a window or other opening in the room; or
(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.
(c) For purposes of this section: (1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and (2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance. (d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.

With respect to the statute on public lewdness, I have no problem at all with it as I think the conduct described in the statute should be prohibited and punished. I also think it is likely the only statute needed for regulation and prohibition of nudity. The indecent exposure statute I consider patently unconstitutional on the grounds that the conduct it seeks to prohibit is already addressed by other existing statutes that prohibit and punish truly offensive behavior. This statute should in my opinion be repealed. With respect to the disorderly conduct statute, admittedly it is a legitimate police power and duty of the state to keep the peace and while I think taken alone PC 42.01(a)(10) shares with PC 21.08 a similar constitutional fatal error; taken together PC 42.01(a)(10) and (a)(11) I think would pass constitutional muster if combined and the verbiage “and is reckless about whether another may be present who will be offended or alarmed by his act; or,” removed from (a)(10). As mentioned I have no difficulty whatsoever with the restriction and prohibition of public lewdness as long as “lewdness” is defined as something having to do with sexual arousal, excitement, titillation or gratification. I think it interesting that no where in the Texas Penal Code, fraught with definitions, does one find a definition for the term “lewd” or any of its variations. By intent perhaps?

So there you have it Ms. Makkai. Hopefully we have been able to enlighten you a bit on the subject of some very important safeguards that you and the rest of Americans share as a beneficary of our consitutional guarantees that you were obviously unaware of. So please observe that the practice of public nudity is and has always been something of a "civil right" for us "nudies". It isn't anything new at all despite what you may have believed. I swear at times that our founding fathers must have had access to some means of peering into the distant future and accounting for almost every inevitability. Truly the United States Consitution is a remarkably insightful document.

Shock and Awe Part 2: Overwhelming Power

To most effectively employ this point of strategy, I think where we would get the biggest bang for our buck is through standing together under the umbrella of one or both of our national nudist organizations, either The Naturist Society or the American Association for Nude Recreation. Become a member, encourage other nudists you know to become a member and get active. Writing a check and putting another membership card into your wallet or purse is not enough. Seek opportunities to get involved within the framework of one of the national organizations. As I’ve said before, I’m not the activist type in the sense that I’m not likely to join in a public nudity protest and risk being fined, arrested or imprisoned. I think those who do engage in this kind of “in your face” activities do have their hearts in the right place and have the best of intentions, but I think these kinds of demonstrations are really counter-productive to our cause. They offend people and really only serve I think to make nudists look like a bunch of wild-eyed, extremist nut cases. Extremism has never been well tolerated in American society. Even though patriotism is foundational to the American experience, even extreme displays of patriotism are likely to garner public criticism and even the negative attention of governmental agencies. But when any group stands together in large numbers and presents a unified front, people take notice. One need only look to history and see how effective was the Civil Rights Movement and the Gay Rights Movement to see why naturists and nudists need to bid a speedy farewell to our past failed strategy of individualism and get it together as a group. This means not just those that have the desire to engage in social nudity but home nudists as well should secure membership in TNS or AANR.

As far as getting actively involved, there are many less extreme things we can do than participating in public nudity demonstrations. Both TNS and AANR offer free printed material that can be handed out or posted in public venues. You can support organizations like the Naturist Action Committee and the Naturist Education Foundation with your checkbook. You can get involved with the national organizations by offering, no demanding some innovative changes. For one thing, when you look at the web sites of both TNS and AANR you find an awful lot of stuff, but I can tell you from personal experience, if you are interested in joining, you really have to look hard to find membership information. It’s almost as if they are apologetic for offering memberships. I think they need to make some changes to their own models of doing business. Membership should be the most stressed and highly visible part of their web site presentation. Not only information about how to join but why it benefits you to join. Join one of the many nudist social networking sites and use the forums to post cogent and well articulated arguments for why being a national nudist organization member makes good sense for all nudists. If you are open about your status as a naturist or nudist and given to public speaking, you could contact local non-nudist social and fraternal organizations and offer to serve as a guest speaker at one of their meetings where you would have the opportunity to present naturism and nudism in a positive way to groups largely ignorant of what our lifestyle is all about. I think you might be surprised by how receptive some of these groups might be to such overtures. Not all of course, but some. If you are a member of The Naturist Society and regularly receive their excellent magazine, Nude and Natural, you could do something as simple as leaving your copy in the reception area of your local dentist or doctor’s office or other public area after you have finished reading it. Yes, perhaps it might be thrown out as soon as it is discovered but perhaps a few people might read too.

If you are a business owner, you could consider if appropriate, including AANR and TNS printed materials in your product packaging, providing low or no cost product rebates and discount coupons that AANR and TNS could use as a membership benefit or premium, provide links to AANR and TNS on your business web site, donate a product or collectible for use in AANR and TNS recruitment campaigns, make a cash contribution to help TNS and AANR fund membership development through direct marketing and web outreach or donate advertising space in magazines, catalogs, web sites or on any television show you produce or are associated with. Come to think of it when is the last time you saw a television ad for TNS or AANR? Think never! Both organizations could easily come up with tasteful advertisements that could be acceptable and non-offensive to anyone that could help get our message out and likely it is lack of financial resources that prevents them from doing so. Yes, the Internet is largely taking dominance when it comes to advertising these days but there is still plenty of room for effective outreach through television and radio spots. Doesn’t it seem obvious how this could really boost a more mainstream perspective for naturists and nudists? I admit to being more than a bit enamored with the effectiveness of the National Rifle Association model for furthering their Second Amendment rights agenda and they employ many of the same methods I have just suggested to wildly successful effect. We as naturists and nudists could do far worse than copying their model to further our First Amendment rights agenda. In summary the keys to successful employment of Overwhelming Power is organizational membership and active participation. Similarly to the real “Shock and Awe” battlefield concept, imposing this overwhelming level of power against the adversaries of social nudity on an immediate and sufficiently timely basis could allow us to seize the initiative with respect to public opinion and so paralyze and overload our adversary's perceptions and understanding of events that they might be rendered incapable of resistance at the tactical and strategic levels.

Next Installment - Shock and Awe Part 3: Dominant Battlefield Awareness

Democracy in Action

The Naturist Action Committee is the non-profit political adjunct to The Naturist Society (TNS). NAC's nine volunteer board members are elected democratically from and by the membership of TNS. NAC is a grass roots organization that relies on the involvement and participation of individual naturists and groups at local levels. NAC exists to advance and protect the rights and interests of naturists throughout North America. NAC supports the responsible recreational nude use of public lands.

From time to time NAC issues Action Alerts which provides Naturists with timely information on political and legal issues of consequence to North American Naturists. Sometimes that information simply provides a background and a context for an important issue. Sometimes it is a call for individual Naturists to take action in true grass roots fashion. As an example, on March 27, 2009, NAC issued an Action Alert pertaining to a bill introduced in the Vermont House of Representatives, designated as H. 154. This proposed legislation would if enacted into law, prohibit and criminalize skinny-dipping and nude sunbathing on all public lands within the borders of the State of Vermont. If interested you may read here the entire text of the H 154 Action Alert.

While not a citizen of Vermont, as someone who might consider visiting there at some point and contributing to the tourism industry revenues of Vermont, this bill could affect me if passed. Also, as an American citizen I find the unwarranted repression of personal liberties in our democratic society reprehensible when such repression is based solely on pandering to the opinions and demands of an uniformed minority who simply cannot distinguish the difference between simple nudity and sexual activity. It would seem that most people consider skinny-dipping and nude sunbathing to be rather benign activities since during an independent poll conducted by the Roper Group in 2006, showed that 75 percent of Americans believed people should be allowed to nude sunbathe without interference as long as it was done responsibly and in an appropriate setting (i.e. areas designated for the activity). So in response to the action alert, I wrote the following letter to the elected officials whose addresses were furnished in the document…

To the Honorable Representatives of the State of Vermont

Greetings:

It has come to my attention that a bill has been introduced in the Vermont Hose of Representatives, Prohibiting Public Nudity on Public Lands, designated as H. 154 which proposes to prohibit and criminalize nude sunbathing and skinny-dipping within public lands located in the State of Vermont.

Frankly, I am astounded that the State of Vermont, known for valuing the personal freedom of its residents and visitors would be considering the enactment of such a bill designed to restrict the personal liberties of every individual and prohibit such benign activities as skinny-dipping and nude sunbathing. Given the challenges of the current economic times, it would seem the legislature has more pressing issues to address. Undoubtedly a law of this type would negatively impact on Vermont’s tourism industry, an industry that I expect brings in a good deal of revenue to the state.

May I respectfully bring to your attention that a public opinion poll conducted by the independent Roper polling organization showed that 74 percent of Americans believe that people who enjoy nude sunbathing should be able to do so without interference as long as they do so at a beach that is set aside and has signage properly installed advising those who might be offended by nudity that the beach has been designated for that purpose.

I respectfully call upon the Honorable Representatives of the State of Vermont to vote against H. 154. There should always be compelling reason to restrict the personal liberties of citizens within a democratic society. Passage of legislation aimed at prohibiting benign and harmless activities and conduct at the behest of a misinformed, intolerant minority does not meet that definition. I think the current laws on the books of Vermont are more than sufficient to regulate public nudity and "lewd" conduct to protect the sensibilities of the ultra conservative minority within Vermont who find it impossible to distinguish between simple nudity and sexual activity.

Respectfully yours,


It is difficult to know whether writing the letter will influence anyone in the Vermont House of Representatives but certainly doing nothing wouldn’t accomplish anything. I can only hope that many North American Naturists will do as I did as certainly correspondence from many will have a better chance of being effective than the correspondence of only a few.