Judge holds that photography of nudes on street is legally protected

NEW YORK–In mid-July, a federal district court judge in New York ruled that Mayor Rudoloph Giuliani’s Office of Film, Theater, and Broadcasting could not block a photographer from gathering 100 people in the nude for two minutes on a street to take their picture. However, an appellate court stayed the decision until it can review the case in September.

District Judge Harold Baer Jr. granted Spencer Tunick, a photographer, a preliminary injunction which prevented the city from arresting him. Baer held that artistic nude photography is a form of expression protected by the First Amendment as well as New York law.

Baer found that artistic nude photography is “comparable to nudity as part of a performance, show or exhibition,” all of which are legal. Baer rejected the city’s arguments that Tunick’s plans should be stopped because he would be drawing numerous nude models to a residential area. Baer stated that the laws do not limit the number of people who can be nude while entertaining or performing in a play, exhibition or show, and therefore, he reasoned, they should not limit the number of nude people in a photograph.

“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. Baer held that because Tunick scheduled the photographs to be taken at 5:30 a.m., he had diminished any threat to the privacy rights of nearby residents. Baer also held that he saw no overwhelming concerns for traffic or safety at that hour.

On emergency appeal to the U.S. Court of Appeals in New York (2nd Cir.), the court on July 17 stayed the decision until a full hearing could be held in September.

Tunick sought a preliminary injunction to enjoin the city from arresting or interfering with Tunick and 75 to 100 nude models, who were to be placed in an abstract formation on Madison Street in New York at 5:30 a.m. on July 18, 1999. The photograph session was to take a total of one hour, with one and a half minutes of the session being conducted with nude models.

(Tunick v. Safir; Media Counsel: Ronald Kuby, New York City)