Constitutional Law

The Bottom Line on Times Square Topless Women

“Why can’t they do something to stop the naked women in Times Square?” my mother asked me on the phone the other day. “What do you want them to do?” I asked just for kicks. “Lock them up of course – since when was it alright to walk around in the street flapping your boobs all day?” she wondered. Well Mom, since you asked, since at least 1992 when the Court of Appeals in People v. Santorell struck down a NY law prohibiting female toplessness in public places.

In writing his own concurring opinion in the case Judge Vito Titone (no jokes about his name in the comments please) stated:

“The [prosecutors] have offered nothing to justify a law that discriminates against women by prohibiting them from removing their tops and exposing their bare chests in public as men are routinely permitted to do. The mere fact that the statute’s aim is the protection of “public sensibilities” is not sufficient to satisfy the state’s burden of showing an “exceedingly persuasive justification” for a classification that expressly discriminates on the basis of sex.”

Judge Titone noted that in many countries around the world public nudity is common in parks and beaches and it can’t be helped if our society finds female breasts more titillating than male breasts: Under the law they are equal. In NY, it is still illegal to bare your genitalia in public (regardless of your gender) and it is still illegal to perform lewd acts in public. But simply strutting your stuff from the waist up is Constitutionally-protected.

Blind but not topless
Blind but not topless
But what to do about all the topless painted women clogging up Times Square? First of all – let’s blame the Naked Cowboy. This guy had a great idea – walk around Times Square in a cowboy hat and tight shorts, using a guitar to cover the shorts, then charge money for a picture. The concept expanded to where Times Square now looks like a video game with dozens of costumed characters hawking for tips for a snapshot. Frozen princesses, Elmos, Batmen, Marios, Statues of Liberty, etc. Well, NY could regulate the commercial use of nudity in a public place but the Law Department would have to prove that asking for tips to take a picture is a commercial enterprise and then have to apply the law to all of these people not just the painted women. They could also arrest folks for aggressively panhandling but proving that can be tricky and the First Amendment protects panhandlers as well.

Mayor DiBlasio is so upset about the women, he talked about tearing up the wonderful pedestrian area Times Square has become and putting the roads back in. A horrible idea that will hurt tourism and area businesses and which would likely lead to him being impeached for felony stupidity. He could grant an exclusive license to some corporation and make it private space and then the corporation could get rid of whomever they wanted. But Fedex Times Square is not gonna happen. So what’s a City to do? It took decades for Ed Koch and Rudy Giuliani to turn Times Square from a ring in Dante’s Hell into a veritable Disneyland. And while many of my generation kind of miss the gritty, seedy, NewYork-ness of the old Times Square (by the way NYers rarely go to Times Square anymore – at least not without out-of-towners it is purely a tourist destination) the family-friendly version has been a huge economic boon to the City; the reduction in crime can also not be questioned as a hugely positive turn of events.

But its precisely because Times Square has become a family destination that many are upset to see any type of nudity going back into the space after we scrubbed it clean of peep shows and porno parlors. I think the only solution right now is to let it be. The free market will limit how many toplesss women can successfully get tips in Times Square. The more attention paid to it, the more it will become popular. After all, other topless events go on routinely in NY and don’t get much notice. For example, have you heard of The Outdoor Co-Ed Topless Pulp Fiction Appreciation Society? Every spring, dozens of women and a few men get naked, spread blankets and go read in Central Park.

Part of living in a free society is that we get into more trouble trying to restrict people than by just letting them do their thing until the idea gets tired or the market won’t support it. Trying to find a legal solution is not likely to work. So I suggest we get used to the Topless In Times Square. Sorry Mom.

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One reply on “The Bottom Line on Times Square Topless Women”

They certainly could crack down and should on the “panhandling.” I’ve seen it. It’s aggressive and they are simply shaking down tourists. Difficult to prove ? Perhaps if you live in a case book/moot court world. However, if the cops start arresting people the word will travel rather quickly. Tits I have no problems with.

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