People v. Hollman

• Decision Date: 21 October 1986
• Parties: , 500 N.E.2d 297 The PEOPLE of the State of New York, Respondent, v. Robert HOLLMAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 977

507 N.Y.S.2d 977

68 N.Y.2d 202, 500 N.E.2d 297

The PEOPLE of the State of New York, Respondent, v. Robert HOLLMAN, Appellant.

Court of Appeals of New York.

Oct. 21, 1986.

Eleanor Fink, New York City, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens, (Beverly Kalman, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Defendant was twice arrested and charged under Penal Law § 245.01 (unlawf exposure) for sunbathing nude on the beach at Riis Park, Bay 1, in Queens County. ¹ He contests his ensuing convictions on several constitutional grounds: violation of his right to freedom of expression, the statute's overbreadth, and deprivation of a fundamental right. We conclude that defendant's Federal and State ² constitutional rights have not been violated.

I

Over a period of years, Riis Park, Bay 1, had informally come to be known as a "clothes optional" beach. The police had received numerous complaints of nudism from local residents, civic associations, elected officials and visitors to the beach. One of defendant's arrests occurred after a police officer viewed him through binoculars from a nearby nursing home. The other arrest occurred when an officer arrived on the beach to investigate an unrelated complaint. At the time of each arrest, defendant was sunbathing without clothes in the company of his wife and two small children.

Defendant's motion to dismiss the charges asserted his belief in the Naturist philosophy that open social nudity promotes health, that it permits heightened awareness of human similarity and vulnerability and that it presents an alternative to the repression of puritanism and the degradati of pornography. He argued that the application of Penal Law § 245.01 to his conduct improperly denied him his State and Federal constitutional rights to free expression (U.S. Const. 1st Amend.; N.Y. Const., art. I, § 8), that Penal Law § 245.01 was overbroad, and that he was denied fundamental liberty and privacy rights. Criminal Court denied the motion.

After a Bench trial, defendant was convicted of two violations of Penal Law § 245.01. Appellate Term affirmed, concluding that defendant's conduct did not fall within any cognizable constitutional protection. We agree.

II

Initially, defendant urges that his nudity, in the context of its location and his beliefs, constituted symbolic expression and, thus, was entitled to protection. For two reasons, this argument must fail. First, defendant's conduct did not rise to the level of communication necessary to invoke constitutional protection. Second, even if defendant's actions were expressive, the State had the power to regulate such expression by prohibiting the public display of nudity.

A

Certainly it is beyond dispute that expressive conduct, in addition to pure speech, is entitled to the protective shield of the First Amendment (Nimmer, Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L Rev 29, 30). " 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in * * * matters of opinion' " (Street v. New York, 394 U.S. 576, 593, 89 S.Ct. 1354, 1366, 22 L.Ed.2d 572, quoting Board of Educ. v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 1186-1187, 87 L.Ed. 1628). Thus, the Supreme Court has invok the First Amendment to protect symbolic speech such as refusing to salute the American flag (Board of Educ. v. Barnette, supra), wearing a black arm band in the context of a Viet Nam war protest (Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731) and displaying a peace symbol on a privately owned flag (Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842).

That particular forms of conduct have been deemed expressive and thus entitled to protections akin to those afforded speech, however, does not imply that all conduct intended to convey a message is expressive (United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672; Nimmer, Meaning of Symbolic Speech Under th First Amendment, 21 UCLA L.Rev. 29, 36). To be characterized as expressive, the conduct must be intended to convey a particularized message and there must be a great likelihood that, given the surrounding circumstances, the message would be understood by those who viewed it (Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221; Spence v. Washington, supra, 418 U.S. pp. 410-411, 94 S.Ct. p. 2730). In Spence, for example, the defendant, upset by the shootings at Kent State and the country's invasion of Cambodia, displayed an American flag with a peace symbol superimposed upon it. The court held such conduct to be protected, noting that the defendant had displayed the flag in "the manner in which flags have always been used to convey ideas" (Spence v. Washington, supra, p. 415, 94 S.Ct. p. 2732). By way of contrast, the Supreme Court has noted that conduct that is ordinarily nonexpressive, such as gambling, setting off fireworks or urinating in public, may be regulated "regardless of the situs," even though the actor's intention may have been expressive (Clark v. Community for Creative Non-Violence, supra, 468 U.S. p. 298, n. 7, 104 S.Ct. p. 3071, n. 7).

Defendant's conduct in this case clearly falls within the latter category. While there may be contexts in which a public display of nudity would reasonably be understood as a means of communicating an idea, it cannot be said that nude sunbathing on a beach is a form of expression likely to be understood by the viewer as an attempt to convey a particular point of view. Although defendant apparently has a specific philosophy regarding nudism, his mere nude appearance did not create a great likelihood that his philosophy would be imparted to the public. Rather, the likely message to viewers was that defendant, like many others on the beach, had doffed his clothing to enhance his comfort, acquire an even tan or simply display his body to others. Such conduct cannot be considered sufficiently expressive to invoke the protections of the First Amendment and article I, § 8 of the New York State Constitution merely because its setting was a beach where nudity is commonplace.

B

Even were we to assume that defendant's conduct was expressive, the State's ability to regulate it or even prohibit it would not be automatically foreclosed. It is clear that the First Amendment does not guarantee the right to declare one's opinion in any place, at any time and in any manner (e.g., Heffron v. International Socy. for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125; Matter of von Wiegen, 63 N.Y.2d 163, 171, 481 N.Y.S.2d 40, 470 N.E.2d 838, cert. denied 472 U.S. 1007, 105 S.Ct. 2701, 86 L.Ed.2d 717; People v. Bakolas, 59 N.Y.2d 51, 462 N.Y.S.2d 844, 449 N.E.2d 738). Thus, conduct may be regulated, or even prohibited, "if [the regulation] is within the constitutional power of the Government; if it furthers an important or substantial governmental interest if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interes (United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, supra; see, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 297-299, 104 S.Ct. 3065, 3070-3072, 82 L.Ed.2d 221, supra; Heffron v. International Socy. for Krishna Consciousness, supra, 452 U.S. pp. 647-648, 101 S.Ct. pp. 2563-2564, quoting Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346; Note, Clark v. Community for Creative Non-Violence: The Demise of First Amendment Protection for Symbolic Expression?, 36 Mercer L.Rev. 1371, 1397).

Viewed against this standard, Penal Law § 245.01 is unquestionably a permissible regulation as applied to defendant's conduct, even if it did incidentally impinge upon his chosen form of self-expression. First, prohibiting public nudity is plainly within the State's police powers. Second, the statute is not aimed at suppressing the expression of opinion concerning nudity; instead, it neutrally prohibits all public displays of nudity regardless of the actor's purpose.

Third, the statute furthers an important governmental objective. Riis Park is a public beach dedicated to the recreation of the public, including New York families. Congress, in its wisdom, set aside all of Riis Park for that purpose. The effect of the nude sunbathers' repeated appearance at Bay 1 was to foreclose its use by others. The Legislature saw fit to remedy the possible crowding of surrounding beaches by prohibiting nudity altogether. There is clearly an important governmental interest in providing recreational space for the citizens of this State. Moreover, the State clearly has an interest in preserving the character of Riis Park for its intended use (see, Clark v. Community for Creative Non-Violence, supra ) and preventing uses antithetical to its essential nature (see, Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222). ³

Finally, Penal Law § 245.01, as applied, is as narrow as it can be in order to fulfill its governmental objective. Significantly, the statute prohibits only public nudity and does not impair defendant's right to advocate Naturism by some other means. And, while it may be argued that the shock of nudity was the most effective method of conveying defendant's philosophy, no one is guaranteed a right to what he considers to be the best of all means of expression, as long as the freedom to express an idea is protected (see, e.g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 [statute banning the use of sound trucks upheld...