from - http://www.freedomforum.org/news/2001/01/2001-01-18-01.htm

Federal judge declares Idaho city's nudity ordinance unconstitutional

By The Associated Press

01.18.01

BOISE, Idaho - A judge has ruled the city's nudity ordinance
that bans anything more revealing than short shorts and modest
halter tops unconstitutional.

U.S. District Judge Lynn Winmill yesterday found that the
ordinance infringes on the First Amendment freedom of
expression.

In his ruling, Winmill wrote: "Indeed many of the swimsuits and
gowns sold in Boise department stores could not be worn in
public without violating the Boise ordinance's ban on public
nudity."

Boise's ordinance is more restrictive than one in Erie, Pa.,
which the U.S. Supreme Court ruled constitutional last March in
City of Erie v. Pap's A.M.

Winmill analyzed Boise's ordinance using the test established by
the Supreme Court in its 1968 decision United States v.
O'Brien. Boise's law, Winmill said, satisfied three of the four
prongs of the O'Brien test. Had it passed the fourth prong, it
would have been allowed to take effect.

Under O'Brien, restrictions of rights must rest within the
constitutional power of the government to enact and must
serve a substantial government interest. That governmental
interest cannot be related to the suppression of free
expression.

Winmill said the Boise ordinance satisfied those requirements.
But the fourth area of O'Brien is that the restriction must not
be any greater than necessary to serve the substantial
government interest. Winmill said the Boise ordinance violated
that aspect.

The Boise ordinance would "completely interfere with the
erotic message of the nudity that the Supreme Court has
indicated is entitled to First Amendment protection," Winmill
wrote.

The owners of Erotic City, a nude dance club, and Night Moves,
which opened recently, sued the city to block the ordinance.
Attorney Deb Kristensen said the ruling pleased her clients.

"They're very excited," Kristensen said. "They've been waiting a
long time."

City Attorney Kevin Borger, who defended the ordinance in
court, said he had not seen the decision as of yesterday
evening and could not comment on it or speculate whether the
city will take the matter to the appeals court.

Boise Mayor Brent Coles was out of town and his spokeswoman
did not immediately return a call.