Berkeley rubs out nudists' right to jury trial

By David Hudson
First Amendment Center

The Berkeley, Calif., city council approved an amendment yesterday to its anti-nudity ordinance that would eliminate the right to a jury trial.

The 1993 law originally made public nudity a misdemeanor. The new law makes public nudity an infraction. The police now have the power simply to issue fines of $100 for a first offense, $200 for a second offense and $400 for subsequent violations.

Even though the penalties have been reduced, some citizens oppose the amended law because it deprives those charged with public nudity the right to be judged by their peers in a jury trial.

A nude performance group known as the X-plicit Players contends the law will effectively suppress the members' First Amendment free-expression rights.

Marty Kent, a director with the ensemble, said: "We are losing our due-process rights under this new law. Our performances are protected by the First Amendment. We feel that when we are charged under the anti-nudity ordinance, the issue should be resolved in front of a jury."

Kent explained that members of the X-plicit Players have been charged numerous times under the law, including five court trials. The impetus for this amendment, Kent says, is the well-publicized acquittal of two members of the group in 1996.

"This law was enacted by a repressive clique in our city government. Some people in the city have a strong emotional response to nudity, and they have let those emotions cloud their legislative judgment," he said.

Deb Moore, another director of the group, said: "The city of Berkeley strongly supports what we do and is aware of the First Amendment's protection of our communicative expression."

Kent and Moore said they are considering gathering enough signatures to place the issue on the ballot for a referendum vote.

Kriss Worthington, a city councilman who voted against the amendment, said: "This change in the public nudity law was only proposed after members of a theater group were acquitted by a jury. This law was a scheme to deprive this group of their jury rights and is a very undemocratic concept. Creating a law based on the fact that you can't convict someone is unfair and undemocratic."

However, Councilwoman Betty Olds, who voted for the amendment, defended the law against the X-plicit Players' arguments, saying: "If it's important to them, why, then raise the funds and pay it."

—The Associated Press contributed to this report.