The young women approach tourists in Times Square and pose for photos, wearing nothing but a thong and a feathered headdress, their bare breasts painted with patriotic colors in a thin simulation of a bikini top. Then they ask for a tip.
Are they performance artists?
Are they panhandlers?
And, perhaps most important, can the city move against them without violating their right to free speech?
Those are among the questions the courts may have to answer if Mayor Bill de Blasio of New York pushes ahead with plans to rein in the activities of the women and their handlers, who have come under fire from business leaders and politicians worried they are driving away tourists.
Whatever action the city takes to control the women, it will face legal challenges at every turn. Civil rights lawyers argue the women are bare-breasted panhandlers, and so they are protected, first by two state high-court rulings that made it legal to go topless and to panhandle, and then by the free-speech clauses in the state and federal constitutions.
‘The Heart of the City’
Costumed characters and visitors said the pedestrian plazas in Times Square were a great place to relax and people watch. Removing them would be sad, they said.
By AMY ZERBA on Publish Date August 20, 2015. Photo by Damon Winter/The New York Times. Watch in Times Video »
So complex is the issue that Mr. de Blasio, who has angrily vowed to put a stop to the practice, suggested on Thursday that one option would be to simply tear out the pedestrian plazas where the women operate.
The mayor met this week for almost three hours with police and city officials on how to restrict the women’s activities before deciding more study was needed, his aides said. On Thursday, he announced that he had formed a task force of city officials, local politicians and business leaders and gave it until Oct. 1 to come up with strategies.
“It’s complicated, and he wants to get it right,” the mayor’s spokeswoman, Karen Hinton, said.
At least temporarily, Mr. de Blasio seems to have gotten his wish. Times Square on Thursday was virtually free of the women, who have adopted the label desnudas, or Spanish for naked, and who were apparently lying low after all of the critical attention.
But if the sudden high-level mobilization — even Gov. Andrew M. Cuomo, a fellow Democrat, has called for their removal — seems extraordinary for a dozen or so women in body paint, it is partly because their presence stirs up many questions about civil rights, as well as prurience and gender equality.
Some see a double standard at work. While a state law limits the ability of women to work topless, there is no similar law regarding shirtless men. One well-known example of the latter is the Naked Cowboy, who appears in nothing but his underwear, hat and boots (and his guitar), and has become as much a part of Times Square as its giant billboards.
Even some social media sites, perhaps the new public sphere, maintain the same distinction; some users of Instagram, for example, have called on the site to drop its restrictions on pictures of women’s nipples.
A 1992 Court of Appeals ruling on the state law said that women could indeed be topless in public, but let stand the prohibition against public female toplessness for commercial purposes. The court also did not settle the issue of whether the law discriminated against women, though some judges believed that it did.
Some legal scholars say that ruling, in a case of seven women who purposely tested a topless ban in a Rochester park, seems to leave a door open for the city to arrest the desnudas for being topless if it could be proven they are engaged in a business. They note the United States Supreme Court has held that limits on nudity at erotic dance clubs are not violations of free speech.
“It sounds like it is commercial,” said Eugene Volokh, a First Amendment expert at U.C.L.A. School of Law. “The city could say if you are naked in a public place for a commercial purpose, we are going to apply the law to you.”
Holly Van Voast, an artist who was arrested in New York several times for going topless and filming the reaction of passers-by, sued the Police Department and obtained a $40,000 settlement. She said the Court of Appeals should revisit the law and finally settle whether the double standard for men and women in New York is discriminatory.
She also said she did not view the activities of the desnudas as true artistic expression. “It’s obviously commercial,” she said. “That’s not supposed to be right as far as the ruling goes.”
City officials, however, say arresting the women for indecency is not an option. That is because they can make a strong argument that they are street performers, exempted by the state law and protected by the First Amendment, the officials said.
Furthermore, the state’s highest court also ruled in 1992 that panhandling was a form of protected speech, so unless the women aggressively solicit money, or harass people, they cannot be arrested, the officials said.
“It’s their argument that they are artists, or street entertainers, and not just someone hanging around half-naked,” said Larry Bryne, the deputy police commissioner for legal matters. “As long as they are performers exercising their First Amendment rights in a lawful way, it’s not a criminal law-enforcement issue that we can address.”
Instead, the mayor’s new task force will look into limiting the number of desnudas or restricting where and when they can operate. Similar “time, place and manner restrictions” have been placed on street vendors in crowded parks.
“They have First Amendment protections,” said Zachary W. Carter, the city’s corporation counsel, “but these protections are not without limitations.”
Civil rights lawyers argue in response that limiting where the women can ask for tips might still be judged a violation of their free speech. Courts have held that such restrictions cannot discriminate against a group because of its message. But the mayor and other city politicians have said the women’s partial nudity is the reason they would be asked to stay out of certain areas, said Ronald L. Kuby, a civil rights lawyer.
“They have already dug themselves a constitutional hole by declaring bare breasts are the problem,” Mr. Kuby said.
Norman Siegel, former director of the New York Civil Liberties Union, said the city would also have a hard time arguing in court that the women were blocking traffic or the entrances of buildings, which are common reasons given for putting limitations on speech. “These women can stand there all day” and have people take their pictures, Mr. Siegel said.
Carl Weisbrod, the city planning commission chairman and co-chairman, along with Police Commissioner William J. Bratton, of the new task force, said the group would also consider stepping up police enforcement against desnudas, as well as costumed characters, who cross the line from asking for donations into harassment. Changing the physical layout of the area to alter foot traffic, or making it a city park, where panhandling is not allowed, are also options being considered.
“I do believe it’s going to require a blend of approaches,” Mr. Weisbrod said.
That enforcement has already begun. On Wednesday night, the police arrested Christopher Olivieri, who works with a team of desnudas, on a warrant for an unrelated harassment charge.
Times Square was largely devoid of the painted women on Thursday, as some said they were avoiding the area for now because of negative press. One 24-year-old desnuda said the city’s effort to regulate the desnudas was not only unfair, but also a waste of resources.
“They want to criminalize us when we’re not doing anything wrong, and there are bigger problems in the city,” she said.
"... a legal view"
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