You don't have to be a rocket scientist to know that if you appear buck naked on most of the beaches of Brevard County, Fla., the sheriff is likely to take offense. On a September day in 1995, Dr. Marvin Frandsen led a demonstration on a public beach just down the road from Cape Canaveral. He wore a hat, and the sheriff was not amused.
Now the case of Dr. Frandsen is in the Supreme Court on a petition for review. I think it unlikely that the court will hear it -- public nudity seems a bit beneath the dignity of the high court -- but the case presents an interesting problem under the First Amendment.The petitioner was exercising his right of free speech. The county was exercising its power to protect public virtue. Who will prevail? The county prevailed in the trial court and again in Florida's 5th District Court of Appeals. Lawyer Mark Tietig of Merritt Island is hoping for better luck with the Supremes.
The facts are not in dispute. In 1995 Brevard County adopted Ordinance 95-21. The law was poorly drafted, but its thrust is clear enough. Any person who appears naked in public in Brevard County, with certain exceptions, is subject to a fine up to $500 and a jail term not to exceed 60 days. In the ordinance, nudity is anatomically defined with great specificity.
Counsel Tietig identifies Frandsen in his petition as "a species of rocket scientist and a person of above average intelligence." He holds a Ph.D. in experimental physics. He is employed by the U.S. Air Force at the Technical Applications Center at Patrick Air Force Base. "He is a top-secret analyst of the electromagnetic pulse phenomena associated with nuclear weapons." His job is to ensure that foreign nuclear powers are in compliance with non-proliferation treaty requirements.
The doctor of philosophy also is identified as a leader of Central Florida Naturists (CFN), sponsors of the September demonstration. Dr. Frandsen and others are members of NUDE (Naturists Unyielding Demand Equality), a clumsy acronym if there ever was one. At the rally they carried signs assailing the Brevard County commissioners for bigotry.
"During the demonstration, Dr. Frandsen theatrically performed as the biblical prophet Isaiah. His portrayal communicated the idea of a lack of virtue and intelligence in politicians who support anti-nudity legislation. He was preaching political repentance to a politically wicked generation. His own nudity constituted a theatrical illustration of the harmless, positive and expressive value of the nude human body."
Now, these are IDEAS, subject to the full protection of the First Amendment. The idea that Brevard commissioners are bigots -- an idea expressed in a public park -- is the very sort of idea that the Constitution permits us freely to express. If our philosopher had kept his clothes on, the sheriff couldn't have touched him.
The commissioners make a persuasive case. The purpose of the ordinance is "to protect societal order and morality and to suppress the adverse secondary effects that public nudity generates." Other Florida communities have found that public nudity has led to "increased incidents of prostitution, attracted other criminal activity, encouraged degradation of women, and facilitated other activities which break down societal family structure and values."
Moreover, in an effort to accommodate free expression, the county has closed its eyes to the extreme north end of Playalinda Beach, which historically has been frequented by those who sunbathe in the nude. Come now, and let us reason together. The right of free speech is no more absolute than any other provision of the Bill of Rights. Localities have undoubted power to regulate sound trucks, billboards and porn shops. Brevard County violates no constitutional strictures when it prohibits public nudity.
Universal Press Syndicate