By Ronnie Cohen
SAN FRANCISCO (Reuters) - A federal judge weighing a challenge by nudists in famously tolerant San Francisco to a measure aimed at curtailing public nudity questioned on Thursday whether city officials had fashioned the ban too broadly.
U.S. District Judge Edward Chen suggested that the municipal ordinance, which was approved by a slim majority of the Board of Supervisors last month, could infringe upon the constitutional rights of nudists to free expression.
Activists, who sued in November, are seeking an injunction to block the law from taking effect as scheduled at the beginning of February. The city is seeking to have the lawsuit dismissed.
"It could have been more narrowly tailored," Chen said of the ban during a 90-minute hearing in federal court in San Francisco that was attended by about a half-dozen protesters who disrobed outside the courthouse despite chilly weather.
The judge said he would take the matter under submission and issue a written ruling in the coming weeks.
San Francisco Supervisor Scott Wiener introduced the ban to curb nudity in public places after residents complained about a daily gathering of naked men in Jane Warner Plaza in the city's predominantly gay Castro District.
Violators face fines of up to $100 for a first offense and $200 for a second. Three-time offenders would face up to a year in jail and a $500 fine. Nudity would still be allowed at permitted parades, fairs and festivals, as well as on beaches.
"What we're trying to do is protect the public from the secondary effects of public nudity," Deputy City Attorney Tara Steeley told the judge during the hearing.
Steeley said the law would protect passersby who would prefer not to see men's genitals when running errands or taking children to school as well as help neighboring businesses, 85 percent of which have complained that the naked men scare off customers.
But the judge countered: "Don't we have to be careful in that area? The city couldn't regulate ethnicity or political activity. Isn't there a danger in allowing the audience to dictate?"
Christina DiEdoardo, an attorney for the plaintiffs, said that the city had not demonstrated any harm from public nudity.
"Where is a scientific study that says leaving the nudists alone is going to cause cancer in the hearts of San Franciscans?" DiEdoardo asked.
"This is not the same as a law that bans smoking in public. No one I know has ever acquired cancer or any disease from walking down Castro Street and running into nudists," she said.
Protesters, meanwhile, said they weren't prepared to abandon their fight no matter what Chen ruled.
"I'm ready to go to the Supreme Court with this," 43-year-old Gypsy Taub told Reuters. "If that doesn't work, we'll come up with creative solutions. We'll protest. We'll get arrested until they budge.
"Non-sexual nudity is not a crime," said Taub, who stripped down to yellow patent-leather boots and a paper hat demanding the recall of Supervisor Wiener.
(Editing by Dan Whitcomb, Cynthia Johnston and Eric Beech)