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by Margaret Reuter
In The News: The Nude Photo Shoot and the Federal Courts
(july '00)Spencer Tunick is an internationally-known photographer whose work involves photographing naked people in public to illuminate the fragility of the human body in an industrial world.
A year ago, in July of 1999, Tunick wanted to undertake just such a shoot on Market Street, a quiet residential street in downtown Manhattan under the shadow of the Manhattan Bridge. The plan was to arrive at dawn one Sunday with about 100 models, who would take off their clothes for only a few minutes. Because Tunick and his models had been arrested at other photo shoots, he engaged Ron Kuby, lawyer to the cranky, to find a way to keep the police at bay. The lawyer sought a permit for the shoot. The City replied that it would grant the permit only if the models remained clothed. Only five days before the planned shoot, Ron Kuby sued the City to prohibit police from arresting Tunick or the models.
TIME IS OF THE ESSENCE
The case started with a frenzied sense of urgency, with motions, hearings, and appeals daily. In First Amendment case law, stopping "speech" before it happens (called prior restraint) carries the highest constitutional burden, and speedy recourse to the courts is considered critical to protecting free speech.
On Wednesday July 15th of last year, US District Judge Harold Baer, Jr. held oral argument, on Thursday he issued his opinion, on Friday the City appealed to the Second Circuit, and on Saturday the Second Circuit held a hearing as well. The shoot did not take place on Sunday July 18th as Tunick hoped. In fact it took almost a year for this case to be finally resolved.
Judge Baer's review was quick. He concluded that an exception to the State public nudity law protected this form of nudity. State penal law outlaws public nudity, except for breastfeeding and for "entertaining or performing a play, exhibition, or show." Although the state law allowed that local rules could differ, New York City has no other rules or laws on the subject. Baer ordered the City not to interfere with the shoot. As expected, the City immediately appealed and the emergency panel of Second Circuit judges was convened on Saturday. That panel put Judge Baer's order on hold and ordered an expedited appeal schedule. That's when things started to bog down.
HURRY UP AND WAIT
Even on an expedited pace, the appellate hearing did not take place until September 13th. At the hearing Judge Guido Calabresi began germinating an idea that would ultimately cause months and months of delay. Calabresi thought the case should actually be transferred from federal court to New York state's highest court, a procedure called certification, which is rarely done. He wanted them to determine whether, as a matter of statutory interpretation or state constitutional law, the exception for nude entertainment allowed even outdoor nude performances. The initial reaction of the other two judges on the federal panel (Robert D. Sack and Ellsworth Van Graafeiland) was that certification was inappropriate. Calabresi persisted.
Both Judges Sack and Van Graafeiland were sure the City could constitutionally stop a large group of men and women from undressing in public. Judge Sack however, thought the shoot must be allowed, because the City had no rule or local law that eliminated or narrowed the exception for nude performances (e.g., indoor performances of "Hair" are permitted, not outdoor performances on the street with little protection for unwilling viewers). Judge Van Graafeiland criticized Kuby's decision to give the courts just five days to review and decide his challenge and argued that, because the date had already come and gone, the case was moot and should be dismissed.
Judge Calabresi held out. Months ticked by. Eventually Judge Calabresi convinced Judge Sack that the only way to get this case resolved was for Sack to join him in sending the case to the state court. On March 24th, 2000, six months after the Second Circuit oral argument, Calabresi filed a 46-page majority opinion asking the New York State Court of Appeals to take the case. Judge Sack filed his reluctant concurrence, under protest. Judge Van Graafeiland fumed. Defying historic judicial protocol Calabresi and Sack had not shown their opinions to Van Graafeiland ahead of time. On April 13th, he filed a biting dissent. His contempt for Calabresi was palpable, noting that "ever since Calabresi moved to this court from Yale Law School he has verbosely crusaded for more extensive use of the certification process" disregarding both the burdens on the state courts and the delay in resolving the case.
As it happened, Calabresi's plan was for naught. On May 12th, the Court of Appeals refused to take the case, explaining that even on a hurried schedule for briefing, argument, and deliberation they would take months to render a decision. And in any event, since the litigants never raised a challenge under the state constitution, it would be "irresponsible" for the court to take it up.
THE DYSFUNCTIONAL COURT
Now the case was back in the laps of the dysfunctional Second Circuit panel. For the first time it moved quickly. On May 19th, Judges Calabresi and Sack, in a joint opinion, directed Judge Baer to reinstate his order for the City not to interfere with the shoot. The opinion, however, gave no legal explanation whatsoever for the decision. Not surprisingly, Judge Van Graafeiland dissented.
On June 2nd, Judge Baer ordered that the shoot may take place Sunday June 4th at 5:15 to 5:45 am, with a maximum of 125 nude models, but now on a more industrial block under the Williamsburg Bridge between Mangin and Baruch Streets. And so it did--tens months and sixteen days later than originally planned.
Meg Sounds Off: The First Amendment deserved better
Despite the early fervor, this litigation did not end for nearly a year. The highly touted free speech protection of the federal courts disintegrated into irreconcilable differences and acrimony among the three Second Circuit judges, who attempted to punt the matter to the New York state high court, which refused to accept the case, and returned it to the same three judges, who again could barely agree. In nearly every opinion issued in this matter, the judges individually proclaimed the imperative of deciding free speech questions speedily. It's clear the judges feel such prompt action is the institutional duty of the courts. It is far from clear that they consider it their individual responsibility as well.
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