68 N.Y.2d 202 | NY | 1986
OPINION OF THE COURT
Defendant was twice arrested and charged under Penal Law § 245.01 (unlawful exposure) for sunbathing nude on the beach at Riis Park, Bay 1, in Queens County.
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 degrada
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 US 576, 593, quoting Board of Educ. v Barnette, 319 US 624, 641-642). Thus, the Supreme Court has invoked 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 US 503) and displaying a peace symbol on a privately owned flag (Spence v Washington, 418 US 405).
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 US 367, 376; Nimmer, Meaning of Symbolic Speech Under the
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
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 US 104, 116).
¡II
Defendant’s next contention is that Penal Law § 245.01 is overbroad in that it prohibits clearly protected activity such as nude modeling for an art class or classroom demonstrations involving human genitalia (see, Penal Law § 240.00 [1] [defining "public place” to include schools]). Thus, he argues, he may challenge the constitutionality of the statute on its face even if his conduct did not fall within the class of protected activities. This claim, too, must fail, as any arguable over-breadth of this statute is insubstantial.
As a general rule, a defendant cannot challenge the constitutionality of a statute on the ground that its application to others could impair their constitutional rights. An exception to this rule exists in instances where the statute’s facial ability to reach protected conduct is so broad that its continued application may chill the lawful exercise of citizens’ right to freedom of speech (Secretary of State of Md. v Munson Co., 467 US 947, 956-957; Dombrowski v Pfister, 380 US 479, 486; Thornhill v Alabama, 310 US 88, 97-98; 3 Rotunda, Nowak and Young, Constitutional Law — Substance and Procedure § 20.8).
This exception is applied, however, only when the statute’s unconstitutional reach is substantial and the statute is incapable of a reasonable limiting construction (Erznoznik v City of Jacksonville, 422 US 205, 216, supra; Broadrick v Oklahoma, 413 US 601). As the Broadrick court noted (p 615), "Although * * * laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that
There may be occasion when constitutionally protected activity will be reached because of the broad range of the statute prohibiting public nudity (see, Penal Law § 240.00 [1]). However, the requirement that overbreadth be substantial is properly used to save a statute which may reach some protected conduct while prohibiting a whole range of easily identifiable and constitutionally proscribable conduct (Secretary of State of Md. v Munson Co., 467 US 947, 964-966, supra; New York v Ferber, 458 US 747, 772; United States Civ. Serv. Commn. v Letter Carriers, 413 US 548, 580-581). Where, as here, the impermissible applications of a statute represent only a tiny fraction of the conduct within the statute’s reach, the overbreadth will not be considered substantial (New York v Ferber, supra, p 773). Moreover, the aspects of the statute that reach arguably protected conduct may readily be severed from those that are aimed at constitutionally proscribable conduct such as defendant’s. Hence, defendant cannot rely on the statute’s potentially unconstitutional reach as a basis for challenging his own conviction.
IV
Finally, defendant makes various claims that suggest he is asserting a fundamental right to appear nude in public. There is, however, no such fundamental right.
In Meyer v Nebraska (262 US 390, 399), the Supreme Court described the nature of rights encompassed by the Fourteenth Amendment liberty guarantee, stating "[wjithout doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
Accordingly, defendant’s constitutional rights were not violated by his conviction under Penal Law § 245.01, and the order of the Appellate Term should be affirmed.
Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur.
Order affirmed.
. Penal Law §245.01 states: "A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola. This section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment”.
. While case law indicates that greater free speech protections may be available pursuant to NY Constitution, article I, §8, than from the First Amendment (PruneYard Shopping Center v Robins, 447 US 74; SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 500; People v Ferber, 57 NY2d 256; Bellanca v State Liq. Auth., 54 NY2d 228, cert denied 456 US 1006), the conduct involved here is not entitled to that greater protection (see, People v Ferber, supra, p 259).
. In concluding that the State’s interest in this case is important enough to justify incidental limitations of expression, we do not reach the issue of whether mere esthetics are a substantial enough governmental
