Chapin v. Town of Southampton

• Decision Date: 03 November 1978
• Docket Number: No. 78 C 1665.,78 C 1665.
• Citation: 457 F. Supp. 1170
• Parties: William B. CHAPIN and Long Island Travasuns, Inc., Plaintiffs, v. TOWN OF SOUTHAMPTON, David Gilmartin, Town Attorney of the Town of Southampton in his official capacity, Conrad Teller, Chief of Police of the Town of Southampton, in his official capacity, Defendants.
• Court: U.S. District Court — Eastern District of New York

457 F. Supp. 1170

William B. CHAPIN and Long Island Travasuns, Inc., Plaintiffs, v. TOWN OF SOUTHAMPTON, David Gilmartin, Town Attorney of the Town of Southampton in his official capacity, Conrad Teller, Chief of Police of the Town of Southampton, in his official capacity, Defendants.

No. 78 C 1665.

United States District Court, E. D. New York.

September 6, 1978.

As Amended November 3, 1978.

COPYRIGHT MATERIAL OMITTED

Kristin Booth Glen, New York City, for plaintiffs.

Scheinberg, Wolf, DePetris, Pruzansky & Mahoney, Riverhead, N. Y., for defendants.

MEMORANDUM AND ORDER

PRATT, District Judge.

Plaintiffs sue on constitutional grounds for declaratory and injunctive relief against Southampton Town Ordinances 1 and 34 which respectively prohibit (1) nudity on "beach areas and in adjacent waters"; and (2) "public bathing" without "suitable bathing dress or covering". Plaintiffs move for a preliminary injunction. However, since there are no substantial questions of fact, the court has ordered that trial of the action on the merits be advanced and consolidated with the hearing of this application for a preliminary injunction. FRCP 65(a)(2). On the merits, the court finds that ordinance 1 withstands plaintiffs' constitutional attacks, but that section 1 of ordinance 34 does not.

The parties agree on the following facts. The individual plaintiff, William Chapin, spends his summers in the Southampton area. Mr. Chapin believes in the "mental, physical and spiritual benefits of nude sunbathing and swimming", and still intends to practice this belief, despite risk of prosecution under ordinances 1 and 34. (Chapin aff. ¶¶ 4 & 13). Mr. Chapin has already been arrested once, on August 27, 1977, for violating ordinance 1 by sunbathing nude on Gibson Lane Beach. The charges were dismissed by the Justice Court for the Town of Southampton without reaching the constitutional defenses asserted by Chapin. However, the Southampton town police have told Mr. Chapin that they will continue to enforce the ordinances against nudity. (Chapin aff. ¶ 14).

The other plaintiff is the Long Island Travasuns (LIT) a non-profit tax-exempt New York corporation, "comprised of individuals who believe in the benefits of nudity, including nude sunbathing and swimming." (Stelts aff. ¶ 3). LIT members avoid the beaches of Southampton for fear of prosecution under ordinances 1 and 34 and, allegedly, their First Amendment rights are thereby chilled.

These facts suffice to give plaintiffs standing to challenge the constitutionality of ordinances 1 and 34, since both Chapin and LIT have a real stake in the validity of the ordinances. Further, a justiciable controversy, ripe for adjudication, is presented, since arrests under the ordinances have been made and will be made in the future if they are allowed to stand.¹ Defendant requests the court to abstain from considering the vagueness of the ordinances pending authoritative construction by state courts. However, since the court finds that neither ordinance should be struck down on grounds of vagueness see Vagueness, below abstention is unnecessary.

PLAINTIFFS' CLAIMS

Plaintiffs claim that each ordinance violates six constitutional principles, in that each: (1) infringes freedom of expression protected by the First Amendment; (2) infringes constitutional rights to privacy; (3) infringes freedom of association protected by the First Amendment; (4) exceeds the town's constitutional power to legislate over private property; (5) is unconstitutionally vague; and (6) is unconstitutionally overbroad. These claims will be considered seriatim.

1. Freedom of Expression.

Plaintiffs argue that nude sunbathing, without more, is expression protected by the First Amendment. For authority, plaintiffs cite a decision by Judge Bartels of this court, Salem Inn, Inc. v. Frank, 364 F.Supp. 478 (E.D.N.Y.1973), aff'd 501 F.2d 18 (C.A.2 1974), aff'd in part, revs'd in part sub nom. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), together with two Supreme Court cases, California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); and Ginsberg v. State of New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, reh. den. 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (1968).

None of these cases supports a First Amendment right to sunbathe nude. In each, the question was whether activities otherwise protected by the First Amendment (dancing in Salem and La Rue, distribution of magazines in Ginsberg) lose their protection when associated with nudity. Nude sunbathing, however, is not associated with dance, literature, or any other standard mode of expression.

The only federal holding on unassociated nudity is Williams v. Hathaway, 400 F.Supp. 122 (D.C.Mass.1975), aff'd sub nom. Williams v. Kleppe, 539 F.2d 803 (C.A.1 1976), involving nude sunbathing on a federally owned beach. The district court in Williams rejected plaintiffs' First Amendment argument:

There is little in plaintiffs' conduct that merits First Amendment protection * * Like wearing long hair, nude bathing is fundamentally individualistic and personal rather than expressive or communicative. In Thurston * * * the Court rejected the notion that plaintiff's hair length is of a sufficiently communicative character to warrant the full protection of the First Amendment * * * There is no reason why this Court should decide the present matter any differently. 400 F.Supp. at 126.

On appeal, the First Circuit said:

We agree with the district court's conclusion that no rights of free speech can be said to have been involved here * * * A distinction must be made between groups concerned with discussing and promoting a pleasurable activity, and those gatherings of people merely desiring to pursue that activity where it can take place. 539 F.2d at 806 fn. 9.

Along with this single holding, there is ample dicta to the same effect from other federal courts. In the landmark obscenity case, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the dissent of Justice Douglas included the following oft-quoted language:

I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct. 354 U.S. at 512, 77 S.Ct. at 1323.

Eighteen years later another dictum appears in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), involving freedom of expression and nudity on a publicly visible drive-in movie screen:

Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work * *. In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent exposure statutes. citing Douglas's Roth dissent. 422 U.S. at 211 fn. 7, 95 S.Ct. at 2273.

The Courts of Appeals have followed suit. The First Circuit in Richards v. Thurston, 424 F.2d 1289 (C.A.1 1970), wrote that "the right to appear au naturel at home is relinquished when one sets foot on a public sidewalk". 424 F.2d at 1285. The Second Circuit, in Salem Inn, Inc. v. Frank, 522 F.2d 1045 (C.A.2 1975), upheld First Amendment rights involved with nude dancing but distinguished "the mere public or open display of nudity". 522 F.2d at 1046. A footnote remarked that nude dancing in a bar is "distinguishable from the kind of public nudity subject to prosecution under indecent exposure statutes", citing Erznoznik and Roth.²

In short, all existing authority indicates that nude sunbathing or swimming is not itself first amendment expression. This court agrees. Although nudity is not in itself obscene, Erznoznik, 422 U.S. 205, 213, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), neither is it communicative. Nudity is protected as speech only when combined with some mode of expression which itself is entitled to first amendment protection. Plaintiffs have not alleged any such connection in this case.³

2. The Right to Privacy.

Plaintiffs argue that the ordinances invade plaintiffs' constitutional rights of privacy, citing Williams v. Hathaway, supra, aff'd Williams v. Kleppe, supra, and Richards v. Thurston, supra.

As noted above, the court in Richards v. Thurston expressly rejected any constitutional right to appear in public "au naturel". 424 F.2d at 1285. The district court in Williams, however, recognized a "narrow zone of personal liberty" in which "nude bathing at Brush Hollow is entitled to some constitutional protection." 400 F.Supp. at 127. Unfortunately, this zone is too narrow to protect plaintiffs here, as appears from the court's reasoning in Williams:

The personal right to bathe in the nude on a beach like Brush Hollow is not of such significance that it can be considered a fundamental right. Its existence at all is derived from the fact that this secluded beach has traditionally been held out as a "nude beach" and there is little chance that passers-by will be subject to plaintiffs' activities.

* * * * * *

It is undoubted that public nudity can be banned. citing Erznoznik. On the other hand, an individual has "the right to appear au naturel at home". citing Richards v. Thurston. The essential difference between the two is not the ownership of the situs of the nudity, but the privacy of the act itself so as not to offend others.

The present case does not fall precisely within the sphere of either rule. Analysis of the problem cannot end by simply stating that Brush Hollow is a federal beach open to all members of the public because it is, in fact, a remote piece of land rarely frequented by the general public. Thus it must be distinguished from nudity in public streets, most parks, and indeed, most beaches. Its special character as a traditional "nude beach" also distinguishes it from most public areas. Yet the public ownership of the

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