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Judge rejects argument linking public nudity to free speech in S.F. case

Natalie Mandeau (right) of France joined a protest Thursday against a San Francisco law banning nudity.

Eric Risberg /Associated Press

Natalie Mandeau (right) of France joined a protest Thursday against a San Francisco law banning nudity.

SAN FRANCISCO — A federal judge rejected arguments Thursday that disrobing in public was protected political speech akin to flag burning.

US District Judge Edward Chen made his comments during a 90-minute hearing held to consider San Francisco’s new public nudity ban, which requires the covering of ‘‘genitals, perineum, and anal region.’’ It is set to go into effect on Feb. 1.

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A narrowly divided Board of Supervisors passed the law last month after residents and visitors to the city’s renowned Castro district complained about what they called unsightly and unsanitary nudity in a plaza in the middle of the gay neighborhood.

Nudity activists filed a federal lawsuit seeking to invalidate the law, arguing the government-ordered cover-up violates their First Amendment rights to express political views. Their supporters also complained the law contradicts the city’s live-and-let-live reputation.

But Chen said it takes more than simply disrobing in public to make a political statement, as he rejected arguments that a public nudity ban was akin to outlawing the burning of the American flag.

‘‘Flag burning has a pretty clear message,’’ he said, while a naked person in public could be simply sunbathing.

‘‘Being nude, it seems to me, doesn’t have the same obvious particularized message,’’ he said after the hearing.

The judge said he would issue a written ruling on the competing requests before the end of the month.

The city wants the judge to toss out the suit, while activists request that Chen block the ban from going into effect until the legal action is resolved.

If the ban becomes law, a first offense carries a maximum penalty of a $100 fine, but prosecutors would have authority to charge a third violation as a misdemeanor punishable by up to a $500 fine and a year in jail.

‘‘Mere nudity is not a criminal offense,’’ Christina DiEardo, a lawyer for the nudists, told the judge, noting that state law only criminalizes nudity such as indecent exposure.

But deputy city attorney Tara Steeley said San Francisco has the authority to pass its own law banning nudity.

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