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CHAPIN v. TOWN OF SOUTHAMPTON

September 6, 1978;

William B. CHAPIN and Long Island Travasuns, Inc., Plaintiffs,
v.
TOWN OF SOUTHAMPTON, David Gilmartin, Town Attorney of the Town of Southampton in his official capacity, Conrad Teller, Chief of Police of the Town of Southampton, in his official capacity, Defendants



The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

Plaintiffs sue on constitutional grounds for declaratory and injunctive relief against Southampton Town Ordinances 1 and 34 which respectively prohibit (1) nudity on "beach areas and in adjacent waters"; and (2) "public bathing" without "suitable bathing dress or covering". Plaintiffs move for a preliminary injunction. However, since there are no substantial questions of fact, the court has ordered that trial of the action on the merits be advanced and consolidated with the hearing of this application for a preliminary injunction. FRCP 65(a)(2). On the merits, the court finds that ordinance 1 withstands plaintiffs' constitutional attacks, but that section 1 of ordinance 34 does not.

 The parties agree on the following facts. The individual plaintiff, William Chapin, spends his summers in the Southampton area. Mr. Chapin believes in the "mental, physical and spiritual benefits of nude sunbathing and swimming", and still intends to practice this belief, despite risk of prosecution under ordinances 1 and 34. (Chapin aff. PP 4 & 13). Mr. Chapin has already been arrested once, on August 27, 1977, for violating ordinance 1 by sunbathing nude on Gibson Lane Beach. The charges were dismissed by the Justice Court for the Town of Southampton without reaching the constitutional defenses asserted by Chapin. However, the Southampton town police have told Mr. Chapin that they will continue to enforce the ordinances against nudity. (Chapin aff. P 14).

 The other plaintiff is the Long Island Travasuns (LIT) a non-profit tax-exempt New York corporation, "comprised of individuals who believe in the benefits of nudity, including nude sunbathing and swimming." (Stelts aff. P 3). LIT members avoid the beaches of Southampton for fear of prosecution under ordinances 1 and 34 and, allegedly, their First Amendment rights are thereby chilled.

 These facts suffice to give plaintiffs standing to challenge the constitutionality of ordinances 1 and 34, since both Chapin and LIT have a real stake in the validity of the ordinances. Further, a justiciable controversy, ripe for adjudication, is presented, since arrests under the ordinances have been made and will be made in the future if they are allowed to stand. *fn1" Defendant requests the court to abstain from considering the vagueness of the ordinances pending authoritative construction by state courts. However, since the court finds that neither ordinance should be struck down on grounds of vagueness (see Vagueness, below) abstention is unnecessary.

 PLAINTIFFS' CLAIMS

 Plaintiffs claim that each ordinance violates six constitutional principles, in that each: (1) infringes freedom of expression protected by the First Amendment; (2) infringes constitutional rights to privacy; (3) infringes freedom of association protected by the First Amendment; (4) exceeds the town's constitutional power to legislate over private property; (5) is unconstitutionally vague; and (6) is unconstitutionally overbroad. These claims will be considered Seriatim.

 1. Freedom of Expression.

 Plaintiffs argue that nude sunbathing, without more, is expression protected by the First Amendment. For authority, plaintiffs cite a decision by Judge Bartels of this court, Salem Inn, Inc. v. Frank, 364 F. Supp. 478 (E.D.N.Y.1973), aff'd 501 F.2d 18 (C.A.2 1974), aff'd in part, revs'd in part Sub nom. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975), together with two Supreme Court cases, California v. La Rue, 409 U.S. 109, 93 S. Ct. 390, 34 L. Ed. 2d 342 (1972); and Ginsberg v. State of New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195, reh. den. 391 U.S. 971, 88 S. Ct. 2029, 20 L. Ed. 2d 887 (1968).

 None of these cases supports a First Amendment right to sunbathe nude. In each, the question was whether activities otherwise protected by the First Amendment (dancing in Salem and La Rue, distribution of magazines in Ginsberg ) lose their protection when associated with nudity. Nude sunbathing, however, is not associated with dance, literature, or any other standard mode of expression.

 The only federal holding on unassociated nudity is Williams v. Hathaway, 400 F. Supp. 122 (D.C.Mass.1975), aff'd Sub nom. Williams v. Kleppe, 539 F.2d 803 (C.A.1 1976), involving nude sunbathing on a federally owned beach. The district court in Williams rejected plaintiffs' First Amendment argument:

 
There is little in plaintiffs' conduct that merits First Amendment protection * * * (Like wearing long hair, nude bathing is) fundamentally individualistic and personal rather than expressive or communicative. In Thurston * * * the Court reject(ed) the notion that plaintiff's hair length is of a sufficiently communicative character to warrant the full protection of the First Amendment * * * There is no reason why this Court should decide the present matter any differently. 400 F. Supp. at 126.

 On appeal, the First Circuit said:

 
We agree with the district court's conclusion that no rights of free speech can be said to have been involved here * * * A distinction must be made between groups concerned with discussing and promoting a pleasurable activity, and those gatherings of people merely desiring to pursue that activity where it can take place. 539 F.2d at 806 fn. 9.

 Along with this single holding, there is ample dicta to the same effect from other federal courts. In the landmark obscenity case, Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), the dissent of ...


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