Public nudity is a legitimate form of political protest and artistic expression, the Madison City Council agrees, so long as everyone behaves.
This makes the city safe for events like the World Naked Bike Ride that use nudity to attract attention to political and cultural issues.
The City Council's decision this week to drop nudity from a public indecency ordinance brought cheers from a couple of protest bike riders so outraged by police action at the event a year ago that they sued the city to halt prosecution.
"You saved the day," bike rider Jason Shaw told east-side Ald. Satya Rhodes-Conway, who gave an eloquent defense of the First Amendment right of expression in response to her colleagues' insistence that political protests that include nudity make them uncomfortable.
"There are a lot of expressions of the First Amendment that make people uncomfortable," Rhodes-Conway said. "I am not going that way."
Public nudity is just one of the behaviors addressed in the public indecency ordinance. As approved Tuesday, it specifically prohibits indecent exposure of genitals, indecent sexual gratification with another or masturbation in the knowing presence of others, and peeping on others in places where they expect privacy.
Public nudity by women breast feeding children is specifically protected.
In the past, the prohibited behaviors could be charged under local ordinance only as disorderly conduct, which did not make known the sexual content of past offenses known to police trying to identify repeat offenders or employers screening prospective hires, drafters of the new ordinance said.
Disorderly conduct proved an unsuitable charging option, too, for the nine cited participants of the 2010 World Naked Bike Ride, which protests oil dependency, body image and lack of respect for bicycles in vehicular traffic. A municipal court judge threw out charges against topless rider Cesilee Dean, and in April a Circuit Court judge dismissed the city's appeal on a technicality and blocked continued prosecution of the case as an inappropriate use of judicial resources.
Had public nudity specifically been outlawed in the new ordinance, the bike participants would have been seen as "pseudo sex offenders," Shaw testified Tuesday. Also troubling is the fact that, as so many tickets last year went to women with bared breasts, the policing of public nudity has been sexist in practice, he said.
It's not nudity, but behavior that the city should regulate, Dean said after the Council's action. "The naked body is not harmful in itself. It's the behavior that makes it harmful and offensive," she said.
Discussion among City Council members demonstrated that what is offensive is a highly subjective matter. Ald. Lisa Subeck said she didn't object to naked political expression, but said it's difficult to interpret the intent of public nudity in public places like those intentionally blitzed by the Naked Bike Ride to get riders' message across. "When someone walks up to me nude at Farmers Market, how do I know if they have sexual intent or not? I tell you, I'm going to be very uncomfortable either way."
Rhodes-Conway challenged the idea of legislating to protect sensibilities. "If everything that made me uncomfortable were illegal, we'd have a much thicker law book, and I'm pretty sure it would not match up with what makes y'all uncomfortable. We have to be very careful when start legislating around our own personal morality. It is not illegal to make people uncomfortable." Performance art and acts of political protest that might make some people uncomfortable need to be protected, she said.
Discussion of the ordinance provoked a range of reactions among City Council members. A few smirked. Ald. Marsh Rummel said she was offended that commercial display of nudity was protected while simple public nakedness wasn't. And Spain-raised Ald. Shiva Bidar-Sielaff apparently was mystified at Americans' tittering obsession with the kind of nudity that doesn't raise an eyebrow on the Continent. "This discussion in Europe is a non-starter," she said.
"I knew the jokes were coming, I've been hearing them all week," said ordinance sponsor Ald. Jill Johnson, who endeavored to focus discussion on prohibiting lewd and offensive behavior right here in the unsophisticated Midwest.
For example, the city needs an effective way to prosecute offenders who expose themselves in public, often targeting young women. "If you are a victim of this type of behavior, it can be very unsettling. It was very upsetting to me," said Johnson, who noted she was the victim of a flasher.
To hone the impact of the ordinance, City Council members amended it at Rhodes-Conway's suggestion to apply only to actions "conducted with lewd and lascivious intent." To broaden its reach they amended it so that peeping is prohibited, not only in person, but also by the use of cameras or other remote viewing or recording devices.
While the ordinance prohibits acts of sexual gratification in the knowing presence of others, it will not prohibit such acts in one's own home.
"We certainly wouldn't be involved in policing that kind of behavior," City Attorney Michael Mays said in an interview.
Shawn Doherty contributed to this report.