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|NMU||NEW YORK||Newsgathering||Jun 12, 2000|
Photographer wins battle to take nude photos on city street
After five arrests and a long legal battle, photographer Spencer Tunick finally got what he wanted all along -- the right to photograph a mass of nude bodies evoking a hilly landscape on a New York City street.
The final decision of the U.S. Court of Appeals in New York (2nd Cir.) found that his right to photograph nudes for artistic purposes was protected under the First Amendment and New York law.
Tunick, an artist specializing in "living sculptures" whose work has appeared in numerous galleries and been reviewed in national magazines, has been arrested five times in the past few years for staging photographs of nude bodies on the bridges and streets of Manhattan without a city permit.
Last year, Tunick applied for a permit to hold an early-morning photo shoot in a residential Manhattan neighborhood. The session was to involve predominantly clothed models, but include a five-minute shoot of nude models. He was granted the permit for the clothed models, but denied the permit for the nude shoot. Tunick then sued the city for violating his First Amendment rights.
Federal District Judge Harold Baer Jr. granted Tunick a preliminary injunction, preventing the city from arresting him during the shoot.
"The privacy interests of the residents of this neighborhood who can avert their eyes cannot outweigh the rights of others to exercise their First Amendment right to artistic expression," Baer wrote.
The state's anti-nudity law also includes an exemption that the court found to apply in Tunick's case. N.Y. Penal Law 245.01 states that a person can be found guilty if "private or intimate parts of their body are unclothed or exposed" or if they facilitate such an act. Yet, an exception is provided for breast-feeding mothers or for "any person entertaining or performing in a play, exhibition, show or entertainment."
In order to overturn the preliminary injunction, the city of New York appealed the case to a three-judge panel of the U.S. Court of Appeals.
"One need not contemplate why, on the city's reasoning, a totally naked production of 'Hamlet' could be staged in the middle of Grand Central Station during rush hour, while Tunick's photo shoot had to be banned regardless of time, place, or manner in which it occurred," Court of Appeals Judge Guido Calabresi wrote.
Calabresi's decision also noted the increasing volume of First Amendment cases amassed under Giuliani's administration, likening the federal courts to local licensors for the city.
"In the current and rather remarkable state of affairs in New York City, there is an all-too-clear danger that the courts, instead of merely interpreting and defending federal rights, may cross the line and become, in effect, an agency that performs crucial local government functions," Calabresi wrote.
The appeals court had asked the New York Court of Appeals, the state's highest court, whether the shoot would be illegal under state law. The state court ruled that the pictures were legal under the exceptions to nudity in the New York Penal law. The city of New York appealed the decision to the U.S. Supreme Court, which declined to hear the case.
"I think Giuliani can't tell the difference between pornography and nudity," Tunick told salon.com. "They better take a closer look at my work."
(Tunick v. Safir; Artist’s Counsel: Ronald Kuby, New York City) -- SK