October 21, 2007
Kentucky Abrogates Nudists' First Amendment Rights
October 21, 2007 12:39 AM
In response to this post partly about Muslims Against Sharia's choice to remain wholly anonymous, Tom T. commented, "As far as MAS goes, their stance fits somewhat with the cases from the '60s where the NAACP refused to release its membership lists for fear of reprisals. I know you're not saying that MAS should be forced to reveal their members, but I just thought I'd point out that their position is part of our constitutional tradition." Some organizations apparently can be forced to reveal their members, however, as evidenced by one state law:
232.041 Inspection of society -- Register of members required.
Each licensed nudist society shall be subject to such reasonable inspection by the sheriff or deputies designated by him as may reasonably be deemed necessary to enforce KRS 232.010 to 232.041 and 232.991, and acting in a reasonable manner sheriffs or deputy sheriffs shall have the right to go upon the private property and gain access to the buildings or inclosures of licensed nudist societies. The owner, operator, or person in charge of a nudist society shall keep a register of names and addresses of members of the society which shall be made available for inspection by proper authorities upon order of the county judge/executive. History: Created 1968 Ky. Acts ch. 203, sec. 4.
Presumably the state has this power with regard to nudist societies because it constitutionally could refuse to license such societies at all; the above statute is listed in the "Public Safety and Morals" section of the Kentucky Revised Statutes. In return for the privilege -- not right -- of forming a nudist society, the leadership must turn over membership lists.
The beauty of cyberspace is that we can register anywhere we want and use anybody as a registered agent. But we promise full disclosure as soon as we start flashing people :)
I stand corrected. :-)
You've found an interesting statute, and one that seems squarely designed for the purpose of harassing the targeted group. I agree that there's probably no right-of-assembly claim here, since nudists are not a protected class.
Still, the statute may be void for vagueness since it doesn't define "society." Is a three-way sexual encounter committed for "health purposes," thereby making it an unlicensed society? More seriously, what about a gym shower?
Would nudists have a claim that the statute is unconstitutional under Lawrence? A legislature can't restrict private behavior simply on the grounds of public morals anymore, can it?
I think there is a right-of-assembly claim for any group; it doesn't depend on being a protected class. For example, stinky hippies are not a protected class (though also not to be deliberately discriminated against!), and they can and frequently do assemble. The trouble is that the nudists want to be able to assemble together in the nude, which is indecent.
And nudists, at least according to David Sedaris, are no more attractive nor sexually active than the rest of us. They just like to be able to be nude in public. Nothing to do with three-ways.
I think a nudist society isn't seen as "private behavior," because of the concern that once this community is created, non-consenting members of the public will have this nudity inflicted upon them. Hence the inclusion of
"(1) The activities of the nudist society are not being effectively concealed from the
ordinary view of the public, or
(2) The activities of the nudist society are not sufficiently isolated from the public, or
sufficient precautions are not being taken to exclude the presence of nonmembers"
as reasons to remove the license.