The Free Speech Movement's late Mario Savio had said on the steps of Sproul Hall at UC-Berkeley in December 1964:
“[W]e're a bunch of "raw materials" that don't mean to be — have any process upon us. Don't mean to be made into any product. Don't mean... Don't mean to end up being bought by some clients of the University, be they the government, be they industry, be they organized labor, be they anyone! We're human beings!
There's a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part! You can't even passively take part! And you've got to put your bodies upon the gears and upon the wheels... upon the levers, upon all the apparatus, and you've got to make it stop! And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!”
US District Judge Edward M. Chen, UC-Berkeley AB '75 JD '79, may have passed near that spot on campus from time to time. I wonder whether he ever heard of the Free Speech Movement. His recent ruling on Hightower v San Francisco [PDF] (re the "Anti-Nudity Law") doesn't mention it.(But if someone insists you're just "raw materials" after all — mere chattels, movable property — for whatever industrial-scale schemes they have in mind, then how are you to deny it, when you sure look packaged for shipment to processing? Unless you prove it by taking off the wrapper to show there really is a free and fully human person underneath it?)
And there are some concerns Free Speech advocates might have with the reasoning:
(Gagging the Sound of Silence)
— Georg Spencer-Brown, Laws of Form (1969)“And the sign said
the words of the prophets are written on the subway walls
and tenement halls,
and whispered in the sounds of silence.”
— Paul Simon, The Sound of Silence (1964)
“A1 (The Law of Calling):
Calling twice from a state is indistinguishable from calling once. To make a distinction twice has the same effect as making it once. For example, saying "Let there be light" and then saying "Let there be light" again, is the same as saying it once.
A2 (The Law of Crossing):
After crossing from the unmarked to the marked state, crossing again ("recrossing") starting from the marked state returns one to the unmarked state. Hence recrossing annuls crossing.”
Judge Chen wrote: "Nudity is not inherently expressive."Comment by Raven: the result of actively leaving a marked state is the same state as before entering the marked state — if and only if one ignores the history of changing states. A once-hopeful emigrant who returns to his birthplace is now in the same physical location as he started, but perhaps a different emotional state from his contentedly never-moved neighbor. A divorcée is as single as a virgin débutante or spinster, but the difference in experience is profound. The act of annulment makes a statement in itself about the marked state — as does the act of divorce about marriage, the act of cancellation about a contract, the act of repeal about a law, the act of overturning about a ruling, these are all value statements! — even though the effect in the present moment is merely to return to the unmarked state, the status quo ante. And judges should already know this; they deal with it often enough. It is also worth remembering that "unmarked" is as much a state as "marked", "off" is as real a switch setting as "on", zero as much a number as one, and "no" is as legitimate an answer as "yes" — rapists may not know this, but judges should. So if armbands are a "marked state" and nudity is an "unmarked state"... why must one be more inherently a "statement" than the other? (Armbands can be purely decorative; nudity can be explosively controversial; judges should know this too.)
Bob Egelko of the San Francisco Chronicle translated: "Nudity isn't speech. ... Chen noted that the U.S. Supreme Court has ruled that... nudity itself is not a statement of anything."
By this reasoning, would someone have no First Amendment right to protest with a blank picket sign? Could he be arrested for doing so? Because unprotected while thereby "stating nothing"? (But would he indeed be "stating nothing"?)
When protesters under oppressive governments appeared in public with gags on their mouths as part of their protests, were they "stating nothing" because of that silence... or was that in itself the loudest possible statement they could have made? Could they be arrested here, because their conduct (absent audible expression) would be unprotected by the First Amendment?
We have seen religious-right-wingers argue that the First Amendment only defends freedom of (affirmative) religion, not freedom from religion — this is a claim to negate any protection from aggressive and invasive efforts to convert nonbelievers. It is distressing to see the same argument applied to freedom of speech. Can it really be true that the freedom of speech applies only to those who choose to literally speak out loud in audible words, and not those who choose otherwise? That there is no "freedom not to speak"?* That due to Tinker v Des Moines, one has the freedom to put on an armband or T-shirt... but now no longer the freedom to take it all off? Perhaps even pointedly and with emphasis?
* Even sworn witnesses in court, under legal compulsion to speak, can appeal to the Fifth Amendment on this point.
(Our Uniforms' Message Was Clear; It's Your Nudity We Can't Hear)
“I AM FREE.”
— painted on FEMEN protester's nude body.
“And ye shall all be freed from slavery,
And so ye shall be free in everything;
And as the sign that ye are truly free,
Ye shall be naked in your rites, both men
And women also....”
— Aradia, or the Gospel of the Witches, 1899.
(This is, of course, the diametrically opposite implication from "raw material" recruits or "cannon fodder" or "property of the government [or other regimental organization]"... which, oddly enough, people put on uniform clothing to convey, an "inherent expression" I doubt even the current Supreme Court has ever had trouble perceiving)What does Liberty itself look like? A woman with her breasts uncovered — as in the 1916 US "standing Liberty" quarter, and Delacroix's 1830 painting "Liberty Leading the People" (just recently defaced by a fanatic and repaired).
The nudist protesters are consistent with a very long symbolic tradition here.
(One of the most famous examples in English, or indeed all of Western, culture was not a symbolic statement of freedom at all, but quite operative... for Lady Godiva [Godgyfu, "God's gift"] freed Coventry from her husband Leofric's onerous taxed thralldom by her unclothed ride. "Truly Count Leofric liberating the city of Coventry from the aforesaid servitude confirmed his charter thus made by affixing his seal." — Flores Historiarum 34, Vol. I, p. 576.)Every conscious member in our society, from tiny children to elderly Supreme Court Justices, knows that clothing (such as a uniform) communicates social roles including dominance and submission, "property" and "owners":
Prisoners and prison guards, enlistees and officers, workers and executives, patients and orderlies and nurses and doctors, maids and monarchs, pastors and popes or patriarchs — even bailiffs and judges, Your Honor! — state, express, admit, declare, announce, proclaim, or even collectively celebrate their status, membership, honors, shames, mastery, subordination, or other social roles: "We belong."
So how can it be that the antonym, the erasure, the annulment of all these markings, is not a message just as clearly communicated?
"I disclaim all such roles, I am neither property nor owner of others, I am a free human being."
Bona na croin, as the Irish Gaelic saying has it, [I'll wear] neither collar nor crown.
(Ancient Irish warriors were famed for running fearlessly naked into battle; that sent a message!)
(Oh, WE Never Did THAT! Ignore The Records Behind That Curtain)
“But that's how it always begins. Very small.”
— Egg Shen, Big Trouble in Little China (1986)
Once again, those in power assert that others must follow their orders about what to wear. At least, thank goodness, so far this time it is not silly fashion accessories like yellow stars or pink triangles — but once the principle of force over freedom is re-established, it could as easily be those as anything else; why not? That's the temptation of power.
Today I'll make only reasonable demands; next year, perhaps on April 1st, I might get bored or drunk and make silly demands (you must wear clown hats and red noses?); and eventually the ability to go past silly to cruel (burqas on pain of stoning? chastity belts? concrete overcoats?) may be just too clear and finally too hard to resist.
Oh but no, power-hungry leaders never go that far, do they? (Have we forgotten Jim Jones, former chairman of the SF Housing Authority Commission, once praised by George Moscone, Harvey Milk, and Willie Brown?) And their enforcers never just keep following orders that far, do they?
Yes, please tell us that, friend. Tell everyone. Tell our dead family members. We'd all love to believe you.