*2 view, nudity. in a state of MURNAGHAN, Before PHILLIPS and in a defi- nudity” is then defined “State WILSON, Judges, United Circuit nitional section Judge for the Western States District expose so as to a state of undress Virginia, sitting by District pubic genitals, human male or female designation. fully with less area buttocks PHILLIPS, Judge: Circuit covering, showing opaque fully less than a female breast with appeals her conviction for covering portion thereof opaque violating Fish and Wildlife a United States 27.83, par- nipple. by going below the regulation, 50 C.F.R. nudity,” in turn expressly cy,” “public defined is “Nudity” thus “indecency.” From it nowhere defines reach when the ordinance’s excluded this, runs, argument the con- the literalist other productions dramatic practiced *3 may prop- proscribes duct which 9.3 legitimate expression.1 artistic § of forms erly “an act of be considered concluded that magistrate judge The contempla- by as defined local law” within way her of breasts 27.83. tion of 50 C.F.R. § ex- fell Code’s within merely considered as a non-con- Whether nudity this form of prohibition of press lenity argument, or as one as- stitutional as de- indecency” of an “act constituted (the vagueness govern- serting process due law, feder- hence violated the by fined local per- interpretation), ment’s we are not fined her regulation. He $25.00. al by suaded it. appeal affirmed on was This conviction issue, perspec- The from viewed either Court, 730 District the United States tive, clearly is whether one on notice that 1364, this Ms. Biocic then took F.Supp. and proscribes of semi- local law the exact state appeal. nudity fairly here is on notice conceded may proscribed by it the feder- also be II indecency” an “act of with- al case, Ms. Biocic stages of At various contemplation law. of local challenges, a of consti- has raised number question subject of This amount non-constitutional, appli- tutional and quibbling, produced a semantic of this assimilat- cation here, good deal the end we local definition of ing the law’s “common with the conduct, her. seem to These convict compels In- sense” an affirmative answer. a first amendment over- have included deed, statutory vagueness legal test of claim, process vagueness a due breadth essentially in expressed is one that is terms claim, claim, hy- a an This of common sense. stems “privacy-penumbra”/ninth amendment brid special law’s concern with reason appeal, she to have claim. On this seems ambiguity in criminal that such statutes: challenges (1) to: claim of confined person ordinary must of “give laws process of vagueness, in violation the due intelligence opportunity a reasonable clause; (2) equal protec- of denial claim of prohibited.” know what is Master Print- clause; process of the due tion violation 700, Donovan, v. 751 ers America of (3) grounded in the apparently a claim (4th Cir.1984)(quoting v. Grayned City 710 privacy jurisprudence of v. Con- Griswold 109, Rockford, 408 U.S. 92 S.Ct. necticut, 479, 85 14 S.Ct. 2294, 2299, (1972)). Wade, (1965), L.Ed.2d 510 and Roe v. ambiguity Given the ultimate L.Ed.2d text, particular the test whether a written (1973), ninth specifically invokes the ambiguous sufficiently one is fails “guarantee personal liber- amendment’s impermissi- give opportunity such an —is rights.” ty “vague” necessarily practical bly —is take in the order listed. We these hypertechnical It asks rather one. question commonsensical whether the A sufficiently “conveys definitive warn- text ing claim have both conduct when mea- vagueness proscribed prac- understanding and sured constitutional non-constitutional America, (if two) ground tices.” Master Printers prongs. Both there are (quoting ordi F.2d at 711 Pe- point 9.3 of the local ed 1538, 1542, trillo, 67 S.Ct. purport punish “indecen- nance does not 2,000,- notes, attracting upwards 1. As Ms. Biocic's brief this ordinance many year, problem whom found the adopted growing 000 visitors a 1984 to deal with a objectionable. nudity Refuge. conduct areas that; appreciate fail to (1947)). test of course blindness could This L.Ed. ordinary necessarily person assumes willful blindness is more excuse than (igno- the text intelligence is aware of South Florida Free ignorance. bald Cf. excuse”). being “no Miami, of it rance City Beaches Cir.1984) (word indecent “certain- here, start test we therefore ly applies public nudity”). intelli- assuming ordinary guid- texts looking at these two gence texts, together These construed prohibited conduct permitted as to ance test, sufficiently warn that Chincoteague National Wildlife within such as that conceded here is question ask whether Refuge. And we *4 prohibited by the federal hence in person, reading these texts the process guarantees nor do not offend due understanding prac- and light of “common principles lenity in the construc- invoke tice,” sufficiently warned that would be regulation’s of the reach. tion place in exposing female “a fully breasts by the view” was B implicitly regulation because it federal an county in the ordinance as identified equal protection Ms. Biocic’s claim2 indecency.” “act of equally (hence, the simple: is ordinance presumably, the that as think, did the We indecency) pro its “definition” of similates judge, only person that and district public exposure female understanding in hibits the breasts refusing common breasts; not male this constitutes a matter fail to be so warned. but would practice the is understanding gender-based and distinction that not sub common public nudity by prohibiting stantially important govern reason for to an related perception (right interest, law is because hence mental fails wrong) it is “indecent.” No other equal in scrutiny pro intermediate level apparent is in common under- reason analysis. tection standing practice society. in this The and assume, deciding, as did the We meaning,” see v. Ron “plain court, upon that a distinction based district Inc., Enterprises, Pair and differences between male anatomical 1026, 1030, (1989), of S.Ct. gender-based equal is female “indecency” notions word includes the analysis purposes.3 But we being “[ojffensive propriety; court that the distinction district offending against modesty delicacy____” substantially is related to here is one that (5th 1979). Dictionary Black’s Law ed. interest, important governmental hence is therefore inconceivable It protection. deny equal not does intelligence society in ordinary this important government interest is the elsewhere) (whatever might be widely recognized protecting one of appreciate fail that an ordinance seg- of that substantial moral sensibilities banning public nudity so because it was did not society that still does want ment of propriety “offensive to common considered displays exposed willy-nilly hence, against modesty,” com- term, portions of fellow citizens’ their monly various accepted definition society traditionally in this thought Only “indecent.” willful anatomies to be government argues erroneously that because the ana- This claim was ascribed protec- fourteenth amendment’s male and female between tomical differences challenges federal rather than tion. Because it incapable "equal” treatment make the two law, should of course have been asserted issue, state respect no denial of at there is process clause of the fifth amend- under due unequal simply is treat- protection; Bolling Sharp, v. ment. unequals, not involve invid- which does ment (1954). L.Ed. The error in Mills, See Wood ious discrimination. moment, however; assumption is of no Cir.1975). pass issue We essentially analysis same either appeal. purposes of this source. profound rights of erogenous whim of the actor to the zones. regarded as have been recognized Gris- (whether personhood justifiably or include These still so, female, and Roe. do she invites our wold all) not but eyes not similarity feel between the attention male, breast.4 “wholesomeness,” “peace mind ings of purpose of for the limited That does natural,” being “free-spirited put Justice Stewart legal inquiry. As our only partial her discrete and ness” which it: her, comparable nudity gave feel nar- recognized that certain have [W]e ings protected freedom well-being men and women are row circumstances Gris- liberty interests fundamental situated; similarly in these circum- not (right contraceptives), wold use of gender classification based stances a abortion). Roe v. Wade (right to This is a the sexes is between clear differences try, long and colorful it has valiant invidious, legislative classifica- and a see, e.g., Richards flatly rejected, realistically based those differ- tion Thurston, (1st Cir. not unconstitutional. ences is 1970) (“the right appear au nature! *5 County Superior Michael M. v. Sonoma relinquished one home is when sets foot Court, 464, 1200, 478, 101 S.Ct. Tribe, American sidewalk”); public a L. J., (1981) (Stewart, 1209, L.Ed.2d 437 67 (1988) (no right 1412 Constitutional Law concurring). high main at appear nude “on the street States, also v. United noon”); see Roth C 1304, 1323, 1 L.Ed.2d U.S. challenge, indi Biocic’s final as Ms. J., (“No (1957) (Douglas, dissenting) cated, ninth amend seeks to invoke the suggest one that the First Amend liberty “guarantee personal ment’s of places”), public in permits nudity ment rights,” particular rights in prepared depart from that we are not recognized personhood famously in the point. view of the matter at this Griswold represented by line of cases AFFIRMED Connecticut, 85 S.Ct. U.S. Wade, and Roe v. (1965), L.Ed.2d 510 MURNAGHAN, Judge, Circuit 93 S.Ct. concurring: (1973).5 panel argued attempts My colleagues have Though she to narrow her claim (“discrete”) prevail “lit- particular of the that “commonsense” must over acted, given ambiguity in “ultimate way her essential effort eralism” panel majority right text.”1 The equate public is to a at the written points premise beside 4. Ms. attacks mental restrictions —the two are Biocic the basic point. is an assessment of the current state of accurate moral sensibilities the matter. She cites in quibble appar- 5. We need not with contrary support proposition a number of of the is itself a ent view that ninth amendment sources, Illustrated, including Sports extra-legal rights; recognized it has been source of those growing, perhaps that seem to indicate a ready al- against cramped at a rule least the source of achieved, by many acceptance rights specifically enumerated construction nudity” points "state of here in issue. And she 486-99, Griswold, See at elsewhere. fact female has undeniable that the breast J., (Goldberg, concurring). S.Ct. at 1684-90 subject high from immemorial been the time great, publicly displayed expression in artistic sculpture prosecution under which painting. brought, C.F.R. made disorderly “indecency conduct criminal public morals are not static in this That by State or local laws." The realm, depictions that artistic of the female defined was deemed magistrate light judge, long accepted, breast cannot have indeed provision, Code to mean an Accomack gainsaid. purpose— But for our limited “showing nudity, female defined as inquire whether intentional breast.” of the full female breast soundly magistrate the same time places Yet the at at the whim of actor is this time any higher any govern- rejected, constitutionally protected against correction Furthermore, majority’s person, decision can to conclude that gone has Biocic, applying hardly be read to hold that all actions re- particular here regu- understanding sulting "nudity” illegal. are Some “indecency” applicable problems local would raise more difficult lation “prohibiting county “vagueness”; and the ordinance laws others would result not fail but to be public nudity” holding Though logic could criminality. removing the illegality impelled warned of the prosecution insist that the bathing suit in an area of a woman’s exceptions, literally law admits of no it is public, even members of the beyond comprehension to conceive that a present. supposed But such wide- infant, a two-year mother of old on a even spread public understanding does not heavily populated beach would be hauled precision of the written word which a changing diaper into federal court for provide. criminal prohibition should response to a call of nature. same thing daresay would be true increasingly large persons An number three-year openly relieving old himself politic does not comprising body herself, four-year cavorting old stark indecency. While I with the definition of edge. naked at the And what of a water's long how have substantial doubts wearing one-piece bathing suit woman will almost-everyone-feels-that-way attitude offending suit lowers her to remove an prevail, bearing rapidly in mind how piece of slime from her stomach area? Or passed through country the era who, viewing no one in the man began men first to swim bare 1890s when vicinity, finds the lure of the water undeni- necessity breasted or the demise *6 able, change begins bathing into to stockings women to wear and shoes while zeal, prosecution, trunks? In its the awith that, swimming, acknowledge the face, straight hypothetical classifies such moment, predominant belief to what occurrences as crimes. Criminal “indecen- indecency propriety constitutes relied involved, cy,” con- language involves dissent, by majority still endures. A cepts outrage and public of offensiveness therefore, appropriate. would not be Only aspects the behavior. those Nonetheless, express my I write to belief public nudity by the statute commonsense, heavily relied on so to are also or “offensive” “indecent” plain meaning the lack of of lan- excuse illegal by regula- can the federal be made exactly missing has guage, is what examples tion. I submit that the above It seems to prosecution Biocic. me could not so be found. rely to questionable the extreme is present fact in the case which interpretation construe the popular to “de- relied on to remove Biocic from the regulation to of a convict when no words public nudity appears in a cent” acts of beings, entirely than an will- human other parenthetical by the district court comment ing companion and Fish Wild- a federal officer, judge: present “Apparently, nude and semi-nude life Service were sunbathing this area of the is of opportunity replace no her was offered regular frequency sufficient as to warrant top. "nudity” operative judicial authority, government’s equate word of with claim regulation: indecency. to indecent Biocic’s conduct amounted pursued Virginia magistrate her Amendment law. The Biocic has not First found expo- accepting Virginia requires display argument, apparently the district law "the judge’s "ut- private parts that her conduct was or his or be court sure her concluded, terly lacking speech she element.” Had He "Defendant’s con- ‘obscene.’” claim certainly its raised a more valid First Amendment did not have as dominant duct for any appeal ‘prurient,’ expression, I note that a conviction purpose based theme ‘shameful,’ sex; fail which was not obscene would or ‘morbid’ interest on the (defen- not contrary, "expression which is indecent but apparently because it was wholesome sun’) get protected by the First Amendment.” some 'extra obscene dant testified she wanted California, Inc. purpose out Sable Communications intent and and was carried in its me, F.C.C., discreetly relatively circumspectly.” (1989). language appears 106 L.Ed.2d an almost violation of it right to seek invasion ticketing participants.” devoted patrols enforcement careful an attenuated Biocic, she was first although sufficient, under to insure no not attempt in an law. While the scene criminal scan dissent, offended, is, justify decided to remove law as it now would be one members like brings where to a situation her an area us close potentially offended whether, might be a tree age-old conundrum of when her in her state might venture forest, any- far removed falls Hymans, States v. In United deshabille. is a to hear there sound. one Cir.1972), court, Yet, I am com- by precedent, constrained to an earlier pursuant well soon pelled to concur. time sunbath- charge that nude agreed with the come, already it French and likely public is or is general ing “where the others, perceived public when sense “indecent conduct.” Id. constituted to be” outrage action will will wane. Biocic’s widespread offense does at 619. Actual non-criminal, not because be classified as required. appear have been “liberty,” but because a bold blow location to unburden Biocic chose the trifling perhaps too even child- it was — bosom, the mad- taking care to be far from spend community matter ish —a (or maddened) crowd. She exercised ding energy addressing. time and sight everyone vigilance out obviously per- He companion. her male act, indecency in at least no
ceived objection part his record reveals doing. the valiant As for
to what skill- officer who Fish and Wildlife Service ALVARADO, Arcangel through by Biocic fully eluded detection oppor- skulking behind sand dunes until tunity like a on the swoop down wolf presented itself, never first he also
fold OF MONTGOM BOARD TRUSTEES OF *7 actions inde- appears have found Biocic’s COLLEGE; Raul ERY COMMUNITY cent.2 Parilla, Defendants-Appellants. Nevertheless, today hold that we ALVARADO, Arcangel area, regu- pursuant to a frequented public technically prohibits intention- lation place, or public, public “in al public open place MONTGOM OF TRUSTEES OF BOARD view,” desire for the com- COLLEGE; Raul ERY COMMUNITY bosom, careful she of a however fort bare Parilla, Defendants-Appellants. viewing, may fall victim was to avoid 89-3314, Nos. 89-3378. by ques- vigilance. We do so community Appeals, Court of United States tionably equating “nudity” “indecen- Fourth Circuit. far from cy.” Had chosen location public, regularly accessible to areas May 10, Argued 1990. justification other she offered some had March Decided sun, worship of the the non-offensive dissenting. difficulty I would find inappropriate to veer so it would be
believe or to an utterance violation
close to free conspiracy ipation suspicious acts to create a “arresting" imagine Mm avert- It is indeed succeed, see, e.g., Hayes, ing eyes making Yet arrest. his while will not (4th Cir.1985), participation have been an fact that him Fish charged ingredient essential of the crime "participation" did not Service officer's Wildlife appear to Biocic. Unlike afford no defense to depend on his intent. partic- agent’s government situations in which