Shock and Awe Conclusion: Spectacular Displays of Force

The final concept of “Shock and Awe” we will consider is spectacular displays of force. Many of the proposed actions already offered in discussing the previous concepts could also fall under this one: Organizational unity, conscientious and consistent involvement in reasonable means of activism, political involvement, public speaking, positive and well articulated explanation of what naturism and nudism is really about in both oral and written forums, positioning ourselves firmly on the moral high ground so as to effect change in the way society views someone who spouts anti-nudism rhetoric. But I really think one of the best means of employing this particular tactic is for large numbers of us to take a cue from gays and start “coming out of the closet.”


This was one of the most prolific and effective tactics used during the Gay Rights movement. While I’m not gay, I think I can safely speculate that like nudists and nudity, gays were never ashamed of being gay any more than we are ashamed of being nude and being nudists. But they as any sane person would be, were inclined to avoid ridicule and abuse given the opportunity. At some point, in large numbers gays and lesbians came to understand that as long as they kept that part of them secret and hidden away, nothing was ever going to change for the better. I think it is now time that nudists come to that same place of enlightened understanding. Coming out will of course not be without its attendant costs. For some that will mean inconvenience and for some real sacrifice with respect to perhaps lost relationships and lost employment opportunities. But those who came before us, that were able to secure the blessings of liberty to themselves and their posterity had the moral courage and fortitude to test their metal under fire, deal with adversity and make the sacrifices necessary. If we naturists and nudists aren’t made of that same stuff, the right stuff, then perhaps we deserve the lot that has fallen to us and we should just gratefully continue on as a perceived rogue, eccentric, fringe element of society and culture and just be happy that we have our gated clubs and resort sanctuaries to retreat to.

Personally I think we need to look deep down inside us and see if we can’t find the courage to openly declare our affinity for wholesome, social nudity to friends, family, co-workers and employers. The sooner we do it, and the more of us who do it, the sooner the discrimination, the ridicule and perhaps even abuse will stop. I know what I’m proposing is not an easy decision, either to make or act upon. But the more I think about, the more I try to hide from others the fact that I’m a nudist, the more I make that a sort of Achilles heel for myself that some unscrupulous person could use as a weapon to bludgeon me with. Secrets tend to come out given enough time, and I think it generally is much more advantageous to out yourself than to have someone do it for you as at least you have some measure of control over the speed and the timing of the disclosure. Secrets on the other hand tend to come out at the most inopportune times and in the most inconvenient places.


Before you make the decision to come out, if you haven’t already, you need to prepare first by educating yourself so that you have readily available arguments that you can articulate effectively to those who disagree with or are apt to ridicule nudists or who may even display hostility towards nudists. Under fire is not the time to learn and develop those kinds of responses. Be ready to defend nudism by explaining why you are a nudist and what the benefits are that you derive from practicing social nudity. The Army uses the shorthand expression of BE-KNOW-DO to concentrate on key factors of leadership. What leaders (DO) emerges from who they are (BE) and what they (KNOW). Leaders are prepared throughout their lifetimes with respect to BE-KNOW-DO so they will be able to act at a moment’s notice and provide leadership for whatever challenge they may face. Here again an illustration that can readily be applied to nudism. What nudists (DO) emerges from who they are (BE) and what they (KNOW). Preparing yourself now with respect to a BE-KNOW-DO mentality will allow you too to be able to act at a moment’s notice and defend your cultural choice effectively regardless of what challenges you might face.

In conclusion, Shock and Awe, also known as rapid dominance, in military doctrine is based on the concepts of: use of overwhelming power, dominant battlefield awareness, dominant maneuvers, and spectacular displays of force to paralyze an adversary's perception of the battlefield and destroy its will to fight; contains key ingredients that naturists and nudists can also employ in our battle to gain respect, understanding, tolerance and more mainstream acceptance as a viable part of culture. This is not a bunch of mindless suggestions I have offered but a clarion call to action. Human beings are prone to always seek and follow the path of least resistance, so believe me I truly understand how difficult it is to let go of an acceptance of the status quo and simply to continue business as usual rather than risk the consequences of applying many of these suggestions. But I ask you to look back in history and see how meager has been the advance of our lifestyle in the past 80 years. Then consider the new wave of conservatism that is sweeping not only this country but many abroad. Don’t kid yourself into believing that the meager rights we now enjoy are in any way secure or that they were cheaply won. Those who came before us, who pioneered the nudist way, Kurt Barthel, Ilsley Boone and more recently Lee Baxandall, all faced their own enemies and their own adversity. It would be a real shame to see the contributions made by those men come to naught but I fear that if we as a community fail to get off our collective duffs, organize, get active, come out and speak out, the nudist way will dissolve into dust and be consigned to the place of a curious footnote in human history.

Coming Soon!

Still intrigued by the idea of nude cruises, The Emerging Nudist went straight to the source and visited with Nancy Tiemann, owner of Bare Necessities Tour & Travel, the preeminent clothing-optional tour and travel operator. Nancy provides interesting insight into clothing-optional getaways, especially nude cruises, in an upcoming interview that you won't want to miss. Look for it Saturday, May 16.

Shock and Awe Part 4: Dominant Maneuver

In the military, maneuver is simply the positioning of forces to subject an adversary to either the actual or threatened use of weapons and tactics relative to your adversary to place him at a distinct disadvantage at a particular time and place on the battlefield. It is a manipulation of a situation in order to gain some advantage. Correctly understood and applied, maneuver can contribute to defeating any enemy in any type of conflict. While it is possible to identify a whole myriad of effects that maneuver may create, I will focus on the four I consider primary: Surprise, shock, suppression and isolation.

I believe there is much work to do in the naturists and nudist community to sharpen our understanding and application of the important concept of maneuver. Again let me refer to the Civil Rights movement (1955 – 1968) and the Gay Rights movement (1965 – 1996) as an illustration for dominant maneuver. I include the dates that are generally accepted as the zeniths of these particular movements to show just how relatively brief a period it took, in comparison to our own history as naturists and nudists, for racial groups, gays and lesbians to forge their own currently held mainstream positions in our culture.

Prior to the Civil Rights and Gay Rights eras, it was not only acceptable to hold racist and homophobic views, it was also perfectly acceptable in polite society to openly articulate those views, use disparaging racial, ethnic and sexual orientation terms and the like. It was even acceptable in some circles to use physical aggression and violence directed at racial groups and homosexuals. Thankfully, my friends, those dark days of history are now long past yet even today, having lived through both of those eras, I am stunned at the rapidity with which both of these movements were able to foster such sweeping changes in our society.

One of the strategies I think both movements employed most effectively was to render it unfashionable and socially unacceptable to openly be a racist or openly hostile to gays and lesbians or to discriminate against people on the basis of race, color or sexual orientation. Certainly needed changes in law occurred doing those periods that helped to alter our culture in dramatic fashion, but it was the changing of the public perception of a racist or sexist from something once acceptable to something not only unacceptable but something most of us now find reprehensible and despicable. I allow that there are still likely some people and some groups that are still embracing racist or anti-gay views, but in this day and age at least they are no longer free to spew their venomous beliefs with impunity in the public forums. To do so would invite ridicule, opposition and even legal action. Certainly these two movements have effectively employed the concept of dominant maneuver and were able to successfully surprise, shock, suppress and isolate their adversaries.

This is yet another tactic that naturists and nudists need to learn to exploit. We need to render anti-nudist actions and rhetoric despicable and repulsive and completely unacceptable in society after the same fashion that was achieved by racial groups, gays and lesbians. Very accurately, we are just another in a long line of minorities who have suffered discrimination at the hands of a majority and we can’t expect that will ever change until we stand up like those groups before us and say, “I’m not taking it anymore!” How do we do this? We do it the same way they did it in the Civil Rights and Gay Rights movements. We need to start pointing out at every opportunity that anti-nudism is just another unacceptable –ism that is discriminatory, harassing, a violation of civil rights and therefore inherently unlawful and just plain wrong. And then we need to keep up a steady drumbeat of that message until it starts to sink in with people. We need to keep it up until that day in the future when it is no longer socially acceptable to openly espouse anti-nudist rhetoric or in cavalier fashion, pass discriminatory laws and policies designed to restrict suppress or deny access by nudists to public beaches and other public lands.

Another part of it is that we must resolve ourselves to the inevitability that we will have to be willing to utilize the courts just as racial groups and homosexuals did to overturn discriminatory laws and policies and to gain repeal of the archaic laws that criminalize mere nudity. This is not only going to take collective will but it will take financial will as well. We will have to be willing in large numbers to put our money where our mouth is. These are the elements of appropriating the concept of dominant maneuver to surprise, shock, suppress and eventually isolate our anti-nudism adversaries.

Next...the Final Installment - Shock and Awe Part 5: Spectacular Displays of Force

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 3: Dominant Battlefield Awareness

Dominant battlefield awareness speaks of near total or absolute knowledge and understanding of self, adversary and environment; rapidity and timeliness in application; operational brilliance in execution; and (near) total control and signature management of the entire operational environment. If we distill this concept to its lowest common denominator that means “be informed” and be willing and ready to react in a proactive way to counter threats.

It isn’t difficult at all to get and stay informed about naturists and nudist issues. There are numerous “nudist” news search engines available on the internet for you to learn about current articles in print and Internet journalism about nudist issues and happenings. Just Google search terms like “nude news”, “nudist news” or “naturist news” and you will find a plethora of links to nudity in the news links. Blogs like USAnudists.com have nudist news archives and many nudists sites now have scrolling nudist news article summaries with links you can peruse. One of the best resources is the Naturists Action Committee Alerts, Advisories and Updates available on the NAC web site. Don’t overlook your own television and printed news outlets which frequently feature articles related to naturism and nudism. These sources are what the military terms “intelligence” assets, but obtaining intelligence, getting and staying informed is only part of the process.

Once you become aware of “actionable intelligence” here is where you too can employ “surgically precise guided munitions” by becoming a prolific correspondent. Exercise your “right” to write. Heed the clarion calls of NAC Alerts and join in the letter writing campaigns that are frequently solicited. The participation of all naturists and nudists to resist any new efforts to curb our rights and liberties are vital. Don’t fall for the old trap that if it isn’t happening somewhere near you it doesn’t effect you. Restriction and suspension of naturist and nudist rights anywhere in this country affects all of us. If those who oppose social nudity are successful in one place you can bet that opposition in another place will be motivated to spring up and try the employment of similar ideas and tactics. When you see attacks on naturism and nudism occurring right in your own local area, get busy writing your councilmen, aldermen, commissioners, state or federal representatives and register your opinions in opposition. Make certain they know you support social nudity and that you vote and will not support those who align themselves with anti-nudism policies. It should go without saying that every naturist or nudist everywhere in this country should be registered to vote and active in the exercise of this important privilege and responsibility shared by every citizen in a free society.

Become such a frequent writer that you become something of an “inconvenient truth” to your local politicians, a voice that insists on being heard and that refuses to be silenced. You don’t even need a NAC Alert as an excuse for beginning a targeted letter writing campaign to advocate nudism. Research your own local laws and ordinances about public nudity and demand that those which criminalize “mere nudity” be changed. Most of these archaic laws could not pass constitutional muster anyway because in too many courts, it has become a long accepted precedent that “mere nudity” is simply a natural human state and alone is not unlawful and unless coupled with “lewd” behavior, not a crime. Involve yourself in the political process. Not only by holding your representatives accountable for which side they come down on with respect to nudist issues but consider financial contributions and active participation in campaigns to keep nudist-friendly legislators in office and to have anti-nudist representatives thrown out. Encourage nudist friends to register to vote, vote and to become active in the political system as well.

If you are a competent writer who can intelligently articulate your views there are other ways to exercise your right to write besides writing letters to political representatives. Consider writing letters and/or articles about naturism and nudism and sending them to local and national publications and media outlets requesting publication. Editors do respond to the interests of their readers. Even the publisher of your conservative hometown newspaper might allow a more objective view of naturism if he hears from even only a few people like you. What do you say? The main thing is to let the publisher know that social nudity is a healthy, family friendly activity practiced by people even among his or her publication's readership. You can also publish and post to your own blog. This is one of those fastest growing areas in the world for the sharing of information, ideas and opinions. There are a good number of blogs already that promote naturism and nudism in a positive and wholesome way, but there is always room for more. These are just a few suggestions on how you can develop and effectively use “actionable intelligence” to achieve dominant battlefield awareness.

Next Installment - Shock and Awe Part 4: Dominant Maneuver

Ellen Makkai: Self-Styled Interpreter of the Constitution

I didn’t intend to post today but felt compelled to share this so please take with me a brief respite from my “Shock and Awe” series and contemplate this offering.

Recently I happed to read an article published May 6, 2009, on NewsWithViews.com by Ellen Makkai. In the article, Ms. Makkai discussed her disagreement with the recent decision by the ACLU to defend “public nudity” as a First Amendment issue (freedom of speech) in connection with their intervention in Boulder, Colorado in the celebrated “Naked Pumpkin Runners” incident. She made quite plain her basis for disagreement by stating her own personal beliefs about the practice of nudity; “Last time I checked, my common sense said public nudity is not normal or practical”; and by inference terming public nudity an “indefensible fringe behavior.” While I disagree with Ms. Makkai’s views on nudity and actually consider her statement not only short-sighted but rather bizarre, that is not the subject I am addressing today. Later in her article, Ms. Makkai reasons that public nudity could not be protected speech or a First Amendment issue; “Strange, I don’t recall “public nudity” in my eighth-grade civics class during discussion of our Constitutional freedoms of expression.

‘Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’

Nope, no nudity mentioned there. Probably because our founding fathers never imagined its citizen elites would rally around public nudity as a civil right.

This newly suggested constitutional right defies logic. Even uninhibited three year-olds recognize propriety; they break into giggles, displaying a healthy embarrassment, when another tot cavorts in the raw.”

Certainly Ms. Makkai, a self-described “domestic right-wing extremist” is entitled to the public expression of her opinions about the practice of nudity, albeit negative ones but hardly qualified I think to take the educated lawyers of the ACLU to task on the topic of Constitutional law, since her only apparent claim to qualification to do so was her arguably limited education in such matters received during her “eighth-grade civics class” and her own “common sense.” The contents of her article show quite convincingly that she possesses little grasp on constitutional interpretation in general and the interpretation of the First Amendment in particular. In response to Ms. Makkai’s article, I must respectfully observe in all candor that it represents as sterling an example as one might imagine of the old adage, “It is better to keep silent and be thought a fool than to speak and remove all doubt.”

Perhaps the following discussion about “protected speech” under the provisions of the First Amendment might help to educate Ms. Makkai and others who might share her wrong-headed views. I will utilize one of the more celebrated and relatively recent United States Supreme Court cases dealing with “free speech” issues to help explain why nudity should clearly be a form of “protected speech” and a right under terms of the First Amendment. This case doesn’t deal directly with nudity but it contains valuable insight into the rights guaranteed by the First Amendment and demonstrates with clarity the similarities in legal theory between the issue of a person’s right to practice public nudity and the right of a person if they choose to engage in “flag burning” the subject of the case discussed.

Texas v. Johnson

Citations: 491 U.S. 397 (more) 109 S. Ct. 2533; 105 L. Ed. 2d 342; 1989 U.S. LEXIS 3115; 57 U.S.L.W. 4770

While the Republican National Convention was taking place in Dallas in 1984, Gregory Lee Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” The demonstrators were protesting the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings. The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. After the demonstrators dispersed, a witness to the flag burning collected the remains of the burned flag and buried them in his backyard. No immediate breach of the peace ensued and no one was physically injured or threatened with injury, though several witnesses testified that they had been seriously and extremely offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, sentenced to one year in prison, and fined $2,000. Johnson appealed the conviction. The Texas State Court of Appeals affirmed, however, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag under the circumstances finding that Johnson's burning of the flag was expressive conduct protected by the First Amendment. Texas appealed the reversal and eventually the case made its way to Supreme Court of the United States who heard the case in 1989 and handed down its decision. The opinion of the court came down as a controversial 5-4 decision with the majority opinion written by Justice William J. Brennan, Jr.

In deciding the case, the court first considered the question of whether the First Amendment reached non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction. The First Amendment literally prohibits the abridgment of “speech” only, but the court reiterated their long recognition that “protected speech” does not end at the spoken or written word. The court rejected the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea (United States v. O'Brien, 391 U.S. 367), but acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court identified two tests; is there clear intent to convey a particularized message; is the likelihood great that the message would be understood by those who viewed it.

The court found that, “Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment.” The court concluded that, while the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word, “it may not ‘proscribe’ particular conduct because it has expressive elements.”

Texas had already conceded that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was whether Texas had asserted an interest in support of Johnson's conviction that was unrelated to the suppression of expression. The state defended its statute prohibiting the desecration of the American flag on two grounds: that states had a compelling interest in preserving a venerated national symbol; and that the state had a compelling interest in preventing breaches of the peace.

As to the breach of the peace justification; the court found that no disturbance of the peace actually occurred or was threatened because of Johnson burning the flag and rejected the claim on the part of Texas that flag burning is punishable on the basis that it tends to incite breaches of the peace, citing the familiar test of Brandenburg v. Ohio that the state may only punish speech that would incite “imminent lawless action.” Finding that flag burning does not always pose an imminent threat of lawless action and noting that Texas already punished “breaches of the peace” directly, the court rejected that argument. With regard to the second Texas argument, that states possess an interest in preserving the flag as a unique symbol of national identity and principles and that given desecration of the flag impugns its value as such a unique national symbol, the state possessed the power to prevent this result. In response, the court observed that no evidence could be found for “flag protection” in the Constitution and thus no existence of any claim of “uniqueness” could be imputed that would raise protection of the flag above the interests of protecting free speech. They answered the “uniqueness” claim directly: “We have not recognized an exception to [bedrock First Amendment principles] even where our flag has been involved...There is, moreover, no indication -either in the text of the Constitution or in our cases interpreting it- that a separate juridical category exists for the American flag alone...We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.”

Justice Kennedy wrote an almost apologetic yet eloquent concurrence for Brennan's opinion: “For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

In summary, the court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration. The court affirmed the decision of the Texas Court of Criminal Appeals in favor of respondent Johnson and invalidated laws prohibiting flag burning which were in force in 48 of the 50 states. Nearly two decades later, the issue remains controversial; recent polls suggesting that a majority of Americans still support a ban on flag-burning.

As a veteran of many years of past military service, I am a proud American who cherishes the way of life symbolized by the American flag. Even after more than five decades of living, I still become teary eyed when the national anthem of our country is played. Thus, personally I honestly admit that I consider the act of burning the American flag to be an appalling act that I’d neither condone nor encourage under any circumstances and would find significantly distressing to view. But I also agree with the decision of the United States Supreme Court that it isn’t something the state has any compelling interest in making unlawful or lawful power to sanction against. To paraphrase Justice Kennedy, the fact that we might not like something or even actually find it distasteful does not permit us to condemn something as wrong that is right in the sense that the law and the Constitution says it is permissible.

Tune in on Sunday, May 10, when I will present Part 2 of this article and examine the key elements of Texas v. Johnson as they relate to public nudity and First Amendment rights.

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