For years, the Naked Cowboy, dressed in nothing but his underwear, hat, and boots and with a guitar, has been posing with tourists in Times Square-causing barely a ripple in the news. This summer the women have joined in on the action posing for photos with tourists in nothing but a thong and a feathered headdress with their bare breasts painted in a patriotic red, white and blue simulation of a bikini top. What a fuss with the Mayor, the Governor, the media, business leaders, politicians, civil rights lawyers, constitutional lawyers, and neighborhood activist all chiming in with their viewpoints on the legality of desnudas in Times Square.
While state law limits the ability of women to work topless, there is no similar law regarding shirtless men. Today, some social media sites, like Instagram, maintain the same distinction.
In 1992 the New York Court of Appeals addressed the constitutionality of the state law under the equal protection clauses of the state and federal constitutions, holding that women could be topless in public but upheld the prohibition against female toplessness for commercial purposes (People v. Ramona). The Court left open the issue of whether the law discriminated against women, although two members of the Court believed that it did.
The U.S. Supreme Court has held that limits on nudity at erotic dance clubs are not violations of free speech.
So, the legal question is whether the topless women are engaged in a business. If they are street performers, then they are exempted by the state law and protected by the First Amendment. However, if they are aggressively soliciting money, then they might have stepped over the line.
Laws against panhandling have been around for decades and some courts have found them unconstitutional-a beggar’s hand, in their view, communicating a constitutionally protected message.
Are time, place and manner restrictions allowed, which the City has placed on street vendors in crowded parks? Or is the fact that such restrictions would be placed on the women because of their partial nudity a violation of their free speech because courts have held that such restrictions cannot discriminate against a group because of its message? Time will tell whether the courts get involved . . .