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93-CV-4484 (TCP)   MEMORANDUM AND ORDER

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------
ROBYN BELLOSPIRITO,

Plaintiff,

- against -

MANHASSET PUBLIC LIBRARY, BOARD OF
TRUSTEES OF THE MANHASSET PUBLIC
LIBRARY, MARIAN P. ROBERTSON,
individually and as the Library
Director and CLARA STEINER,
individually and as the Library
Exhibits Coordinator,

Defendants.
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PLATT, Chief Judge.

This is an action seeking monetary and injunctive relief for the alleged suppression of plaintiff's right to free speech and expression under the First Amendment in violation of 42 U.S.C. 1983. The parties have cross-moved for summary judgement on the issue of liability under section 1983.

The plaintiff in this action is an aspiring artist who arranged to have a collection of her oil paintings displayed in the Community Room of the Manhasset Public Library. The defendants, however, refused to allow several of plaintiff's paintings depicting semi-nude female figures to be exhibited with the collection.

Defendants contend the library's policy against displaying nudity in any form is permissible in order to maintain the decorum and serenity of the library. However, this Court finds that a total ban upon the display of nudity at the library is constitutionally infirm under contemporary First Amendment jurisprudence.

Therefore, this Court hereby grants plaintiff's motion for summary judgement.

The salient facts underlying the present cross-motions are largely undisputed. Plaintiff, a local artist, sought to have her paintings displayed in the Community Room of the Manhasset Public Library, a separate room of the library that is reserved for community uses that often includes art displays. Her application, submitted along with photos of several of her artworks but not including any of the paintings presently at issue, was approved by the library.

Plaintiff intended to show several paintings not provided with the application that included fanciful depictions of semi-nude females. The library has a firm "policy" against showing artwork that contains nudity, although it does not appear that this policy is written in any tangible form.
1

Plaintiff was informed of the policy by a library representative after staff members saw a printed invitation containing one of the disputed paintings. Prior to the exhibition, plaintiff was again warned of the policy and library officials refused to permit her to display three paintings containing semi-nude females in either a frontal view or silhouette. The parties agree that the nudity depicted in the paintings is fairly innocuous.

Plaintiff alleges that the defendants individually and collectively infringed her right to free speech under the First Amendment of the United States Constitution in violation of 42 U.S.C. 1983. In order to state a claim under section 1983, plaintiff must prove that the defendants, acting under "color of state law," deprived her of a right, privilege or immunity secured by federal law. See
Parratt v. Taylor, 451 U.S. 527, 535-36 (1981).

The parties agree that the Town of Manhasset's rule prohibiting the display of nudity at the library is State action for purposes of plaintiff's section 1983 claim. See
Erznoznick v. City of Jacksonville, 422 U.S. 205, 207 n.3 (1974) (municipal ordinance is State action). Accordingly, the sole issue before this Court is whether the defendants' conduct impinged upon plaintiff's First Amendment rights.

Analysis of a claim asserting a violation of the right to free speech requires the Court to evaluate the nature and quality of the speech and the intrusiveness of the regulation. First, we must determine whether the utterance is protected free speech. Second, if the speech is within the broad protection of the First Amendment, we must evaluate the forum in order to determine if the speaker is entitled to conduct his or her First Amendment activities at the chosen location. Finally, this Court must examine the restriction upon free speech to determine whether the limitation on expression is justifiable in light of the quality of the speech and the nature of the forum.
Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 797 (1985). Under this three-part test, we find that the Town of Manhasset's ban on nudity does not pass constitutional muster under the Free Speech Clause of the First Amendment. Therefore, plaintiff's motion for summary judgement must be granted.

I. Protection of Artwork Under First Amendment

It is beyond cavil that the First Amendment encompasses a freedom of expression that extends well beyond mere spoken or written words.
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 505 (1969). Freedom of speech "means more than simply the right to talk and write." City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Rather, the Constitution protects the right of individuals to communicate their opinions and ideas irrespective of the chosen method of expression. Texas v. Johnson, 491 U.S. 397, 404 (1989).

Indeed, the parties do not dispute that plaintiff's artwork is entitled to some degree of protection under the First Amendment. The parties disagree, however, on the breadth of constitutional protection afforded to inanimate artistic expression as compared to pure speech embodied in spoken or written words.

The scope of protection afforded to an individual's expressive activities depends, in some respects, upon the nature and source of the speech at issue. The spoken or written word, so-called "pure speech," is at the heart of the free speech clause and is accordingly "entitled to comprehensive protection under the First Amendment."
Tinker, 393 U.S. at 506. The power of the government to regulate matters of pure speech are sharply circumscribed unless the speech falls within a limited category of unprotected expression that is of such a pernicious character that it may be banned without further justification. See New York v. Ferber, 458 U.S. 747 (1982) (child pornography); Miller v. California, 413 U.S. 15 (1973) (obscenity); Beauharnais v. Illinois, 343 U.S. 250 (1952) (hate speech).

In addition to pure speech, expression that is impliedly communicated through symbols or conduct may also find shelter under the First Amendment. However, such "symbolic speech" is protected free speech only to the extent that it is reasonably calculated to express a "particularized message" beyond the mere act or symbol itself.
Johnson, 491 U.S. at 404. Moreover, the Free Speech Clause protects only the right of expression -- the government enjoys significant freedom to regulate the underlying act or symbol so long as its action is not calculated to suppress the resulting expression. United States v. O'Brien, 391 U.S. 367, 376 (1968) (burning  draft cards). Indeed, a regulation targeting the underlying conduct will be upheld despite any incidental limitations on the expressive character of the activity if the law is properly based upon a substantial government interest "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 interest." Id, at 376-77.

Defendants contend that the library's rule prohibiting the display of nude artwork is a permissive conduct regulation that minimally restricts the symbolic speech embodied in the work. In support of this contention, defendants principally rely upon the plurality opinion in
Barnes v. Glen Theater, Inc., 111  S. Ct. 2456 (1991), wherein the Supreme Court held that a ban on nude erotic dancing was a permissible conduct based regulation that only incidentally impeded the more compelling symbolic speech of the erotic dance. 111 S. Ct. at 2461. In Barnes, the plurality found that nude dancing included some expressive conduct "marginally" within the "outer perimeters" of the First Amendment." Id. at 2460. However, "'when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms'." Id. at 2461 (quoting  O'Brien, 391 U.S. at 376). Accordingly, the Court reasoned that a ban on public nudity that was designed to protect public morals and public order could be constitutionally applied to erotic dancing because the suppression of protected free speech was minimal and the restriction furthered an important governmental interest unrelated to the suppression of speech. Id. at 2463.

This Court finds that plaintiff's artwork is expressive speech more akin to pure speech and hence entitled to broad First Amendment protection. Unlike the live conduct that was at issue in O'Brien and Barnes, the only non-communicative human conduct involved in creating a work of art is complete when the artist encapsulates his or her thoughts in paint and canvas.
2 The public display of a completed work of art, much like displaying a communist flag, Stromberg v. California, 283 U.S. 359 (1931), or wearing a military uniform in protest of war, Schacht v. United States, 398 U.S. 58 (1970), or displaying a peace symbol over an American flag, Spence v. Washington, 418 U.S. 405 (1974), is a "silent, passive expression of opinion, unaccompanied by any disorder or disturbance." Tinker, 393 U.S. at 508 (Vietnam War protesters wearing black armbands "involves direct, primary First Amendment rights akin to 'pure speech'").

Indeed, if it be conceded that a picture is worth a thousand words, the First Amendment would be meaningless if that picture is not afforded protection commensurate with the ideas or opinions expressed by the work.
3 Since the parties agree that the paintings at issue have serious artistic value and are not obscene, this Court finds that plaintiff's artwork is protected free speech worthy of broad constitutional protection.

II. Forum of Plaintiff's Speech

The mere fact that speech falls within the broad protection of the Free Speech Clause does not confer an absolute right upon the speaker to conduct his or her First Amendment activities at the chosen forum. The parameters of the public's right of access to particular property to engage in expressive activity depends upon the nature of the public use to which the facility is dedicated.

The Supreme Court has established three categories of public property that define the level of permissive government regulation of protected speech at the forum. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983). Accordingly, the standards we must apply in reviewing the constitutionality of the defendants' actions depends upon whether the Manhasset Public Library may be properly characterized as a "non-public forum," a "public forum," or a "limited public forum." Travis v. Owego-Appalachin School Dist., 927 F.2d 688, 691-92 (2nd Cir. 1991).

State property may be found to be a public forum for First Amendment activities where tradition or government action has caused that property to be accessible for the expressive activities of the general public. The public is presumed to have a broad right of access to streets, parks and other areas that have "immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. C.I.O., 307 U.S. 496, 515 (1939).

In addition, the government may designate alternative public fora for speech by making its facilities or property routinely available for the indiscriminate use of the general public. Perry, 460 U.S. at 47. "In [these] places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed." Perry, 460 U.S. at 45.

Public property which is not by tradition or designation a public forum for speech is governed by different standards. It is axiomatic that the State, no less than a private individual, is under no obligation to open up its property to the speech activities of others. Perry, 460 U.S. at 46. In those areas that the government has not dedicated to First Amendment type activities, any reasonable regulation upon expressive activities will be upheld provided that the restriction is not designed to suppress a particular point of view. United States v. Kokinda, 497 U.S. 720, 727 (1990).

Furthermore, the government may properly open its property to the public for limited purposes and restrict speech to subjects consistent with that purpose without running afoul of the First Amendment. Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S.Ct. 2141, 2147 (1993). "In the case of a limited public forum, constitutional protection is afforded only to expressive activity of a genre similar to those that the government has admitted to the limited forum." Travis, 927 F.2d at 692. Thus, the government remains free to impose reasonable restrictions upon the genre of speech that may be uttered at a limited public forum, but limitations on the species of expressive activity within the genre of permissible speech are subject to the same close judicial scrutiny applied to speech in a public forum.

This Court finds that the Manhasset Public Library is a public forum that has been opened to the general public for at least certain categories of speech.

Defendants argue that, irrespective of whether the library itself is a public forum, the Community Room of the library is a non-public forum. We disagree. The Community Room of the library is dedicated to "educational, cultural, philanthropic and civic activities, . . . community, civic, educational and charitable functions . . . [as well as] the exhibition of arts and crafts so long as those displays do not inhibit the use of the 'Community Room' for other library activities." Robertson Aff. at 1-2. Unequivocally, this is not intermittent or sporadic public use such that the library may remain a non-public forum. See Perry, 460 U.S. at 47. "Though occasional prior use might not suffice to establish a designated public forum open to all, such use will result in a forum designated for the limited category exemplified by the prior permitted use." Travis, 927 F.2d at 693 (citations omitted).

In the present case, the library has opened up the Community Room for a multitude of speech related uses, including the display of artwork. Therefore, this Court finds that the Community Room of the library is, at a minimum, a limited public forum for protected free speech. See Kreimer v. Bureau of Police of Morristown, 958 F.2d 1242, 1261 (3rd Cir. 1992) (library is limited public forum); Lamb's Chapel, 113 S.Ct. at 2146 (school auditorium).

III. Regulation of Protected Speech

Although the State has broad discretion in choosing the categories of speech to permit within the confines of a limited public forum, once expressive activity is concededly within the established parameters of the forum the State is bound by the same standards as apply in a traditional public forum. Longo v. United States Postal Service, 953 F.2d 790, 793-94 (2d Cir.), adhered to on remand, 983 F.2d 9 (2d Cir. 1992). Accordingly, the library's inclusion or exclusion of particular categories of speech in the Community Room will be upheld provided the distinction is reasonable and not designed to suppress a particular point of view. Lamb's Chapel, 113  S.Ct. at 2147. In addition, the library may place reasonable time, place and manner restrictions upon expressive activities that are within the genre of speech admitted to the limited forum. Longo, 953 F.2d at 794.

However, a content-based prohibition that restricts a species of expressive activity within the genre of permitted speech must be narrowly drawn to effectuate a compelling state interest. Id, at 793. Under these standards, the library's ban on nudity violates the First Amendment.

Plaintiff's artwork falls comfortably within the genre of speech permitted at the library. Defendants concede that the library was regularly available for the display of artwork. The library contends, however, that the ban on nudity is a proper exclusion of a category of speech. But a ban on nudity does not limit the "class of speakers for whose special benefit the forum was created" or regulate "topic[s] . . . encompassed within the purpose of the forum." Cornelius, 473 U.S. at 806.

Rather, the library's policy regulates the chosen means of expressing speech and the message conveyed by speech that is otherwise within the designated purpose of the forum. The law is clear that once the government "allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre." Travis, 927 F.2d at 692. Since the Town of Manhasset has opened up its library to artistic expression on virtually any subject matter, it may not restrict the artist's chosen method of expression under the rubric of a forum limitation. Thus, plaintiff's artwork is of the genre of speech for which the forum was created and any limitations on that expression is subject to strict scrutiny under the First Amendment.
4

Defendants' total ban upon nudity in the Community Room is not narrowly tailored to serve a compelling State interest. Although the library has an irrefutable interest in preserving the serenity of the library and shielding children from nudity, those interests are not sufficient to support a total ban upon all nudity "irrespective of the context or pervasiveness." Erznoznik, 422 U.S. at 213.

The State does not have a compelling interest in suppressing all nudity simply in an effort "to pretect the young from ideas or images that a legislative body thinks unsuitable for them." Id, at 213-24. As applied to the relatively innocuous nudity contained in plaintiff's paintings, the library's no-nudity policy is neither narrowly tailored nor supported by a compelling State interest. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

Because the library's policy impermissibly seeks to regulate the content and message of plaintiff's protected expression, the ban is an unconstitutional interference with plaintiff's First Amendment rights. In concluding that the library's no-nudity policy is invalid, we do not deprecate the legitimate interests asserted by the Town of Manhasset. However, there is ample opportunity for the defendants to regulate offensive speech at the library consistent with the First Amendment. First, the library remains free to rescind the open character of the facility. Perry, 460 U.S. at  46.

Second, defendants have plenary authority to regulate or even prohibit whole categories of unprotected speech. See Miller v. California, 413 U.S. 15 (1973). Finally, although sexually explicit speech is protected from total suppression, such speech does not enjoy comprehensive First Amendment protection and "the State may legitimately use the content of these materials as the basis for placing them in a different classification" from other speech. Young v. American Mini-Theatres, Inc., 427 U.S. 50, 70-71 (1976).

Indeed, reasonable content specific time, place and manner restrictions upon sexually explicit speech are valid if: "(1) they are justified without reference to the content of the regulated speech; (2) they are narrowly tailored to serve a significant or substantial government interest; and (3) they leave open ample alternative channels of communication." Mitchell v. Commission on Adult Entertainment, 10 F.3d 123, 130 (3d Cir. 1993) (footnotes omitted). Therefore, although the present ban on nudity may not withstand scrutiny under the First Amendment, the defendants have ample authority to regulate the nature and quality of speech in the Community Room consistent with the First Amendment.

Plaintiff's artwork is protected speech of the genre generally permitted to be uttered in the Community Room of the library. Accordingly, any content-based restriction on that speech must be narrowly tailored to serve a compelling State interest. The defendants have not identified any State interest that could feasibly justify an outright ban on plaintiff's protected expression from the library. Consequently, the library's policy infringes upon plaintiff's First Amendment rights in violation of 42 U.S.C. 1983.

Therefore, plaintiff's motion for summary judgement must be granted. Submit an order for partial judgement, on notice.
 

            SO ORDERED

            Signature of Thomas C. Platt
            Chief Judge, U.S.D.C.

            Dated: Uniondale, New York
            July 31, 1994
             

FOOTNOTES

   1. The mere fact that the defendants' no-nudity "policy" is not reduced to a written regulation may be sufficient reason itself to strike down the restriction. It seems apparent that this scheme vests discretion in a government actor to permit or suppress protected speech, which is "inherently inconsistent" with the precision and objectivity that our First Amendment jurisprudence demands. Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). However, since plaintiff did not raise this objection in her moving papers and it is not entirely clear that the policy is unwritten, this Court will proceed to address the merits of the no-nudity rule itself.

   2. At least one Circuit has found that the restriction in Barnes was upheld by the plurality not because the expression was symbolic speech but, rather, because the speech was sexually explicit expression which, even if not obscene, is not entitled to the full panoply of First Amendment protection. Mitchell v. Commission on Adult Entertainment, 10 F.3d 123, 130 (3d Cir. 1993) (citing Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 (1976)). Thus the plurality's reasoning in Barnes may have no application to non-explicit protected speech.

   3. Although this Court has located no case that expressly decided that breadth of First Amendment protection available to artwork, the Supreme Court impliedly afforded broad protection to the expressive content of artwork in sustaining a facial attack upon an ordinance prohibiting the showing of motion pictures containing nudity at drive-in movie theaters. Erznoznick v. City of Jacksonville, 422 U.S. 205, 217 (1975). Indeed, the Court in Erznoznik found the statute overbroad precisely because it may reach protected expression such as nudity contained in "the opening of an art exhibit." Id at 213. See also Massachusetts v. Oakes, 491 U.S. 576, 591A (1989) (Brennan, J., dissenting) ("Photography, painting, and other two-dimensional forms of artistic reproduction . . . are plainly expressive activities that ordinarily qualify for First Amendment protection.")

   4. Defendants argue unpersuasively that the nudity ban is a restriction on the manner of speech, not the content, and thus is examined only for reasonableness. This argument is simply without merit. See Erznoznik, 422 U.S. at 211 (nudity ban "discriminates among movies solely on the basis of content").
 

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