Under First Amendment, NYC Can’t Arrest Bare-Breasted Public “Performers”


Can New York City take legal action against young women who approach tourists in Times Square to pose for photos, wearing nothing but a thong and a feathered headdress, their bare breasts painted with patriotic colors? The New York Times asks whether they are legally performance artists or panhandlers. Mayor Bill de Blasio is trying to rein in the women, who have come under fire from business leaders and politicians worried they are driving away tourists.

Civil rights lawyers argue the women are bare-breasted panhandlers, and so they are protected by two state high-court rulings that made it legal to go topless and to panhandle and by the free-speech clauses in the state and federal constitutions. De Blasio, who has angrily vowed to put a stop to the practice, met this week for almost three hours with police and city officials on how to restrict the women's activities before deciding more study was needed. Some see a double standard at work. While a state law limits the ability of women to work topless, there is no similar law regarding shirtless men. “It's their argument that they are artists, or street entertainers, and not just someone hanging around half-naked,” said Larry Bryne, the deputy police commissioner for legal matters. “As long as they are performers exercising their First Amendment rights in a lawful way, it's not a criminal law-enforcement issue that we can address.”

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