Unconstitutional Arkansas

Part 1: The First Amendment

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Some may argue that Congress did not make this law... Arkansas did. That is true, but the Fourteenth Amendment, Section 1 states "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Due Process Clause of the Fourteenth Amendment incorporates most of the provisions in the Bill of Rights, which were originally applied against only the federal government, and applies them against the states.

Source: http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

Part 2: Arkansas law § 5-68-204

Source: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-6/chapter-68/subchapter-2/section-5-68-204

Title 5 - Criminal Offenses

Subtitle 6 - Offenses Against Public Health, Safety, Or Welfare

Chapter 68 - Obscenity

Subchapter 2 - Offenses Generally

§ 5-68-204 - Nudism.

(a) As used in this section, “nudism” means the act or acts of a person or persons congregating or gathering with his, her, or their private parts exposed in the presence of one (1) or more persons of the opposite sex as a form of social practice.

(b) The provisions of this section do not apply to the enumerated acts if:

(1) The purpose of the person committing the act or acts is to render medical or surgical treatment or to determine the need for medical or surgical treatment or to cleanse such sexual part, and the person committing the act:

(A) Is a licensed physician, as defined by § 17-80-101, or any such physician of a sister state making a professional call into Arkansas;

(B) Committed the act under the professional direction of any physician described in subdivision (b)(1)(A) of this section; or

(2) The persons are married legally one to another.

(1) Person, club, camp, corporation, partnership, association, or organization to advocate, demonstrate, or promote nudism; or

(2) Person to rent, lease, or otherwise permit his or her land, premises, or buildings to be used for the purpose of advocating, demonstrating, or promoting nudism.

(d) Any person, club, camp, corporation, partnership, association, or organization violating any provision of this section is guilty of a Class A misdemeanor for each offense.

(e) This section does not repeal any existing laws of the State of Arkansas except those in direct conflict with this section but this section is cumulative to the existing laws of the State of Arkansas.

Part 3: How Arkansas law § 5-68-204 violates First Amendment rights

1. Paraphrasing paragraph (a), nudism is defined as “persons congregating… as a form of social practice”. Paragraph (c)(1) makes it unlawful for any person to “demonstrate” (i.e. take part in) nudism. When you put 2 and 2 together, this law violates “the right of the people peaceably to assemble”. In other words, it is illegal for naturists to “congregate” even though they do so “peaceably”. (Over the past 17 years, I have been to dozens of clothing-optional resorts, beaches, and hot springs from coast to coast. I have not seen or heard any violence at any of them.)

2. Paragraph (c)(1) also makes it unlawful for any person to “advocate” or “promote” nudism. This is a clear violation of “freedom of speech” and “freedom of the press”. This law criminalizes citizens who express a favorable opinion about nudism, but allows others to express unfavorable opinions about the same topic.

3. Without their freedom of speech, Arkansas naturists are severely limited in their right to “petition the Government for a redress of grievances”. If a nudist contacted his or her elected representative to try to get this law changed or repealed, he or she would have to do so without saying anything positive about nudism. (Because to do so would constitute “advocating” or “promoting” nudism.) Needless to say, it would be pretty tough to convince an elected representative to support changing a law when you aren’t allowed to speak about the positive aspects of the activity forbidden by the law. In other words, this law is cleverly written so that if you try to change the law by explaining the benefits of nudism, you are already breaking the law.

4. § 5-68-204 violates religious freedom because:

a) It “respects religious establishments” which teach (or imply) that the human body is inherently sinful or shameful.

b) It “prohibits the free exercise of religions” which incorporate nudism as a means to foster body acceptance and the belief that the human body is inherently good and natural.

To illustrate this point, consider the following… “If God is perfect, and if God created us in His image (the image of perfection), then why should we be ashamed of what God created?” Many naturists prefer to worship nude. It doesn’t matter if you understand it or agree with it. None of us are insisting that you worship the way a naturist does. Likewise, non-naturists have no right to forbid naturists from worshiping as they choose. (Although I am not a religious person, I adamantly believe everyone has the right to worship as they wish, provided they are not causing harm to others.)

Part 4: How Arkansas law § 5-68-204 violates other fundamental American values

1. Since Arkansas naturists cannot effectively petition their own government, their views and concerns cannot possibly be represented by their elected officials. And that means taxation without representation!

2. § 5-68-204 also contradicts The Declaration of Independence, which states (in part), “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” By outlawing the form of recreation naturists love, § 5-68-204 directly interferes with our pursuit of happiness. (Of course, our founding documents don’t guarantee that we will “find” happiness, but the idea is the government is not supposed to stand in the way of us “trying to find” happiness. This law most definitely stands in the way of our pursuit of happiness.)

3. To paraphrase paragraph (c)(2), it is “unlawful for any person… to permit his or her (property) to be used for… nudism.” In other words, this law specifically targets private property. I believe this violates the Fourth Amendment, which reads “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under this law, if an Arkansas naturist hosts a gathering of like-minded friends in his or her own house, the police have the authority to show up and force their way in. So clearly Arkansas naturists do not have “the right to be secure in their homes”.

4. § 5-68-204 violates the Fourteenth Amendment because nudists do not receive "equal protection of the laws". The law deprives nudists of multiple rights which are supposed to be protected by both the U.S. and state Constitutions. Examples include: the right to peaceably assemble, freedom of speech, the right to petition the Government, religious freedom, the pursuit of happiness, and the right to be secure in one's own house.

Part 5: How Arkansas law § 5-68-204 violates the state Constitution

Just as this law violates the First Amendment of the US Constitution, it also violates Article 2 of the state’s own Constitution.

Section 2. Freedom and independence.

All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property, and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.

For the same reason described in Part 4, paragraph 2, § 5-68-204 violates naturists’ “inalienable” right of pursuing their own happiness.
This section is supposed to provide citizens the right of "protecting reputation". But as mentioned in Part 3, paragraph 2, critics can say whatever they want about naturists, but naturists would be breaking the law if they tried to protect their reputations with information favorable to nudism.

Section 3. Equality before the law.

The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity; nor exempted from any burden or duty, on account of race, color or previous condition.

§ 5-68-204 violates Section 3 for the same reasons described in Part 4, paragraph 4.

Section 4. Right of assembly and of petition.

The right of the people peaceably to assemble, to consult for the common good; and to petition, by address of remonstrance, the government, or any department thereof, shall never be abridged.

§ 5-68-204 violates Section 4 for the same reasons described in Part 3, paragraphs 1 and 3.

Section 6. Liberty of the press and of speech - Libel.

The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions, is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.

§ 5-68-204 violates Section 6 for the same reason described in Part 3, paragraph 2. Naturists are not permitted to "freely write and pulish their sentiments on" the subject of nudism.

Section 13. Redress of wrongs.

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.

§ 5-68-204 violates Section 13 for the same reason described in Section 2. A non-nudist can attack a naturist's character, but the law will not permit the naturist to provide information favorable to nudism in order to defend his or her character.

Section 15. Unreasonable searches and seizures.

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

§ 5-68-204 violates Section 15 for the same reason described in Part 4, paragraph 3.

Section 24. Religious liberty.

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect, or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship, above any other.

§ 5-68-204 violates Section 24 for the same reason described in Part 3, paragraph 4.

Section 25. Protection of religion.

Religion, morality and knowledge being essential to good government, the General Assembly shall enact suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship.

Every General Assembly since 1957 (when this law was passed) has failed to protect naturists’ right to peaceably enjoy their mode of worship. And not just “public” worship; naturists can’t even commune with like-minded believers in the privacy of their own homes.

Part 6: The consequences of having the audacity to practice or advocate nudism in your own house

Violating this law is a Class A misdemeanor, punishable by a fine up to $2,500 (see § 5-4-201) and/or imprisonment up to one year (see § 5-4-401). Pretty harsh consequences for being naked in your own house! But the knee-jerk over-reaction is just getting started...

According to § 5-14-112, paragraph (a)(2), "A person commits indecent exposure if, with the purpose to arouse or gratify a sexual desire of himself or herself or of any other person, the person exposes his or her sex organs under circumstances in which the person knows the conduct is likely to cause affront or alarm." Now I've never seen anyone try to "cause affront or alarm" at a naturist venue, but what are the odds a naturist is going to be on the jury to act as a voice of reason? (not likely) So all a prosecuter has to do is twist the facts a little and provoke some emotional responses from the jurors (who were most likely raised in an environment where nudity was taboo), and it becomes very plausible for a naturist to be convicted of "indecent exposure", even for a completely non-sexual situation in which no one was "alarmed".

Violating § 5-14-112 is a Class A misdemeanor just like § 5-68-204, so why would I bother to mention it? There is an importatnt difference... With indecent exposure, four convictions within ten years is a Class D felony, which carries a fine up to $10,000 and/or imprisonment up to six years. In addition, the naturist would lose his or her right to vote, and he or she could be placed on the sexual offender list [see § 12-12-903, (12)(A)(i)(o)]. (Again, even if nothing sexual was taking place, our society has become so overly sexaulized that it seems many people simply cannot comprehend the concept of non-sexual nudity. So it is very likely that a naturist would have to "prove his or her innocence".)

Sources:

§ 5-4-201: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-1/chapter-4/subchapter-2/section-5-4-201

§ 5-4-401: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-1/chapter-4/subchapter-4/section-5-4-401

§ 5-14-112: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-2/chapter-14/subchapter-1/section-5-14-112

Note that paragraph (a)(1) is specific to being in public, but paragraph (a)(2) can be applied anywhere.

§ 12-12-903: http://law.justia.com/codes/arkansas/2012/title-12/subtitle-2/chapter-12/subchapter-9/section-12-12-903

Part 7: Isn't it ironic?

Arkansas law § 5-68-204 categorizes nudism as an “Obscenity” and an “Offense Against Public Health, Safety, Or Welfare”. However, no justification is provided as to “how” nudity is obscene or “how” it adversely affects public health, safety, or welfare. Even if a justification was given, nudism is normally practiced on private and/or remote land, well out-of-sight and out-of-mind of the public. How does forbidding nudism on private/remote land help protect a public that wouldn’t see it in the first place? My only guess is that, back in 1957, it was just “obvious” that nudity was “obscene”, so no justification was needed. (Has our society's attitude toward the human body matured since then? I certainly hope so.) Categorizing nudism as an “obscenity” and an “offense against public health, safety, and welfare” reinforces the irrational notion that the human body is somehow inherently shameful. In effect, this law impedes the development of a healthy attitude towards one’s own body and the bodies of others.

For the parents out there, consider this… This law prohibits nudity in the presence of the opposite gender, and only provides two exceptions: married couples and doctor visits. It is illegal to advocate, demonstrate, or promote nudism, and there are no exceptions for parents. That means parents are not allowed to teach their children naturist values. However, § 5-68-308 protects teachers “for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene.” So the government can decide what to teach your kids (even if you consider it to be obscene), but you can’t teach naturist values in your house to help your children develop a positive attitude towards the human body. Whether you are a naturist or not, do you believe the government should have this kind of invasive authority?

(Source: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-6/chapter-68/subchapter-3/section-5-68-308)

Arkansas law § 5-68-306 allows the display “of nudity, exhibited by a bona fide art, antique, or similar gallery or exhibition and visible in a normal display setting.” In other words, it’s legal for an art gallery to have nude art in a “normal display setting” (i.e. accessible to the public), but it’s illegal to be nude in the privacy of your own house with friends of the opposite gender. (Source: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-6/chapter-68/subchapter-3/section-5-68-306)

As mentioned on the home page, the penalties for talking about nudism are far more harsh than those for participating in prostitution.

(Source: http://law.justia.com/codes/arkansas/2012/title-5/subtitle-6/chapter-70/section-5-70-102)

Part 8: Closing remarks

Simply put, § 5-68-204 is a gag order on Arkansas naturists. It blatantly violates the fundamental and “inalienable” rights guaranteed by both the First Amendment and the state Constitution. Since 1957, the government of Arkansas hasn’t just failed to protect these freedoms… It has taken an active role in suppressing these freedoms!

Given that this law contradicts the state's own Constitution, it creates a conundrum for police officers. The police are supposed to uphold the law, but they are also supposed to protect citizens' rights. So what is an officer to do if called upon to enforce this law? My guess is that each officer would have to make his or her own decision whether to side with the law, or side with the Constitution. And where they land with that decision would probably depend on their personal opinion about nudity. Sounds like a recipe for a very inconsistent application of justice.

For those of you reading this outside of Arkansas, what does this law mean for you?... What are your interests? What are your passions? Are you ready to lose the right to "promote" or "advocate" those things? If you think it can't happen, just look at Arkansas... It's been happening here for over 60 years! If one state can keep a law like this on the books for that long, then it serves as a precedent that can be replicated by any local, state, or federal goverment. All it takes is for a legislature to decide that your interest, hobby, liefestyle, etc is undesirable in some way. They need not make any attempt to understand why you like what you like. All they need is their omnipotent wisdom. If freedom of speech can be so easily squelched for three million Arkansans, what does that say for the rest of our country?

The Arkansas Legislature should be utterly ASHAMED of itself. Stop and consider for a moment just how many Americans (from 1776 to today) have sacrificed lives, limbs, and health (physical and mental) to earn the freedoms we enjoy. Also consider the untold trillions of capital our nation has invested throughout the generations to promote and protect freedom around the world. And here you are, outlawing freedom of speech in our nation's heartland to maintain your misguided notion of "morality". That's more "obscene" than the human body could ever be! With one stupid law, you undermine the most basic freedoms this country is supposed to stand for!

We are all Americans. Some of us don’t like motorcycles, but that doesn’t give us the right to stop others from riding. Some of us don't like to be on the water, but that doesn't give us the right to stop others from sailing, surfing, kayaking, etc. Some of us don’t like guns, but that doesn’t give us the right to stop others from protecting their families, their homes, and themselves. Some of us don't like tatoos or piercings, but that doesn't give us the right to stop others from getting them. Some of us don’t like religion, but that doesn’t give us the right to stop others from worshipping. Some of us don’t like science, but that doesn’t give us the right to stop others from discovering how the universe works. And I get it… Some of you don’t like to be nude (and that’s fine)… But your fears and inhibitions do not give you the right to tell others how to live. Yes, we live in a country where the majority rules, but there is a big difference between "majority rules" and "majority dictates". (The difference is whether or not the minority still has their Constitutional rights respected.) Even if there were zero naturists in the state of Arkansas, this law is still unconstitutional!

We are your neighbors. We pay our taxes. We come from every walk of life. Our religious beliefs, political ideals, occupations, hobbies, challenges, accomplishments, and failures range across every spectrum out there. We are a cross-section of society at large, with one minor difference… We prefer to feel the sun, and the breeze, and the water on our skin. If you’re wondering “Why?”, consider this… If you’re lounging around at home on a weekend, would you rather wear a three-piece suit or shorts and a t-shirt? (I’ll assume you answered “shorts and a t-shirt”.) And why would you rather wear shorts and a t-shirt instead of a three-piece suit? (I’ll assume you answered “because it’s more comfortable”.) Voilà! That is just one of many good reasons we prefer to wear nothing vs. wearing shorts and a t-shirt… It’s just more comfortable. Many naturists would also say they prefer to be nude because it feels more natural. And I’m sure if you asked a dozen naturists why they prefer be nude, you’d probably get about three dozen more good answers.

The bottom line is this… We are good people; we want to enjoy our freedoms just like you; and we should be able to do so without having to worry about whether or not the cops and the courts are going to be on our side.

Part 9: The silver lining

Constitution of the State of Arkansas of 1874

Article 2

Section 29. Enumeration of rights of people not exclusive of other rights - Protection against encroachment.

This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.

So the good news is this… Thanks to the extraordinary genius of the Forefathers who wrote the state’s Constitution, Arkansas law § 5-68-204 is already VOID! (But good luck explaining that to the officer at your door.)