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Reason
Reason
Politics
Eugene Volokh

First Amendment Protects Right to Use Nudity as Protest (There, a Pro-Trans Protest) in Public

[1.] Some states and municipalities ban public nudity generally, but some, like Washington, ban only nudity that is "lascivious," which is to say involving some sexual motivation (to oversimplify somewhat).

Does the First Amendment permit such bans when applied to expressive nudity? You can read the badly fractured decision of the Court in Barnes v. Glen Threatre, Inc. (1991) for yourselves and figure out what it means as a precedent. Five Justices voted to uphold a total ban on public nudity, even as to places where only consenting adults are present (such as strip clubs). But Justice Souter, whose vote was necessary to that result, stressed that nude dancing could be banned to prevent "secondary effects" such as "prostitution, sexual assault, and other criminal activity." It's not clear then how that holding would apply to cases where the nudity is not sexual and is unlikely to yield such effects.

[2.] Nudity and recalls of elected officials, together! Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of "some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office," and courts can reject recall grounds if they don't adequately allege such misconduct.

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