News The Right to Perform Naked Near a Courthouse

  1. A 25 year old man was arrested for indecent exposure during May 2014 as a result of his playing violin completely naked in front of the Mark O. Hatfield Federal Courthouse in Portland, Oregon. He was allegedly told several times that the exposure of genitals in public would be a violation of a Portland city ordinance. While on a break from his performance, he crafted a sign which included a quote from the Remarks by Mahmoud Ahmadinejad to the 65th UN General Assembly. It stated "When the judge and the prosecutor or defender are on the same side of the conflict, how can you expect justice?" After resisting arrest and refusing to walk on his own, police officers carried Matthew Thomas Mglej to a police vehicle and escorted him to jail. But the story does not end here.

    Portland City Code § 14.24.060: "It is unlawful for any person to expose his or her genitalia while in a public place, or a place visible from a public place, if the place is open or available to persons of the opposite sex."​

    On January 20, Mglej filed a federal lawsuit in U.S. District Court alleging a violation of his First Amendment free speech rights, cruel and unusual punishment, battery, assault and negligence by local authorities. His defense is that he was engaged in an artistic performance piece as a sign of protest. This included his arriving at the courthouse in a suit, removing his clothes and placing them in the form of a straw man prior to his musical performance. After being confronted by police, Mglej whipped out his iPad to show officers verdicts in support of his naked anti-government protest, such as State v. John E. Brennan and State v. Gatewood. verdicts which vindicated those committing similar offenses. He also pulled out Oregon Constitution Article 1, Section 8, insisting that it also supported his rights of free speech and expression to protest.

    As matter of fact, the state of Oregon did acquit John E. Brennan for stripping naked in a Portland airport, supposedly protesting against TSA (Transportation Security Administration) procedures which include full body scans and pat downs. The district attorney argued that the act was one of frustration and the "protest" explanation only came later. Circuit Judge David Rees disagreed and said: "It is the speech itself that the state is seeking to punish, and that it cannot do."

    Article I, section 8, of the Oregon Constitution: Section 8. Freedom of speech and press. No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.​

    The opinion in City of Portland v. Gatewood, 76 Or.App. 74, 708 P.2d 615 clarifies the issue concerning the right to appear naked versus the appearance and performance of an act. In upholding the ordinance, the court explained that the issue isn't just the naked body itself. Rather, the court must also focus on the effect caused by an action occurring while naked - such as walking on a public street in a manner intended to arouse another person. An attempt to display an "expressive or symbolic conduct that qualifies as speech due to its communicative character" would be excluded from the Portland city ordinance. The court found that the statute imposes reasonable restrictions on nudity in order to maintain the public order and general health, safety and welfare.

    By way of example, what if you decided to bicycle naked as a form of expression without intent to arouse anyone? That action might not be deemed unlawful in the state of Oregon. In fact, every year the city of Portland hosts the World Naked Bike Ride. If you're wondering about the City Code's reference to "persons of the opposite sex" and questions about arousal, let's leave that to another article. While it may be certain to arouse interest, the intent of the statute has already been made clear. We'll cover the decision to this case when it is exposed to the public.
    Legal Practice:
    Rights - Civil Rights
    Jurisdiction:
    • Oregon
    • US Federal

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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