ACLU won't sue city — for now

An American Civil Liberties Union representative said the civil rights group will not sue Ashland over a citywide nudity ban recently approved by the City Council.

Meanwhile, Gennifer Moss, who is from California and is known as "The Naked Lady," plans to return to town to — depending on one's perspective — educate or provoke Ashlanders on the subject of nudity. Moss caused a stir in 2008 when she tried to ride topless in the Fourth of July parade, but she was stopped by the Ashland Chamber of Commerce.

The issue of nudity became more controversial in 2009 when two naked men appeared in town and were spotted around schools.

Ashland already had a ban on the display of genitals downtown and in parks before the City Council acted on Jan. 5 to ban the display of genitals by anyone age eight or older in all outdoor public spaces.

Prior to the 4-2 vote, the ACLU of Oregon sent a letter to city officials saying the proposed ordinance violated the Oregon Constitution's protections for freedom of expression.

This week, Ralph Temple, a board member of the Southern Oregon chapter of the ACLU, told the Tidings that group members had decided the citywide nudity ban is not subject to a legal attack at this time. However, the ACLU will monitor how the city enforces the ban to see if a test case emerges, he said.

"We have to wait and see. We will watch it closely," Temple said.

The ACLU has maintained that nudity can be a form of political, artistic, social or lifestyle expression.

Whether the new city ordinance is vulnerable to a lawsuit remains an open question.

In a 1985 decision that still stands, the Oregon Court of Appeals upheld the city of Portland's ban on public nudity. But the court also ruled that public nudity can be a protected form of expression, such as when a person is protesting in the nude. Public nudity should be considered on a case-by-case basis, the court said.

City Attorney Richard Appicello tried to build in legal protections for the citywide nudity ban by attaching clauses stating that the ban was not intended to prohibit expressive activities protected by Oregon's Constitution.

City Councilor Eric Navickas, who voted against the citywide nudity ban, was able to convince a majority of councilors to strip out much of that language. That led Councilor Greg Lemhouse to accuse Navickas of trying to weaken language in the nudity ban that could have helped protect the city against lawsuits and the cost of litigation.

Temple said he believes that Navickas actually helped the nudity ban become more legally defensible. Some of the language called on people who plan to protest in the nude to contact city officials in advance. For example, protesters could have notified police of their plans.

Temple said the language that was removed conferred authority on Police Chief Terry Holderness to decide when he would and wouldn't enforce the nudity ban, based on the reason for the nudity. That could lead to arbitrary and discriminatory enforcement.

"You can't pass a law that says nudity is unlawful unless the police chief allows you to do it," Temple said.

Appicello, the city of Ashland's attorney, said he did not want to comment on whether the nudity ban is more or less defensible in court after certain language was removed. He said he would do his job and defend the ordinance if it's challenged in court.

The new citywide ban is not likely to end the controversy over public nudity.

Moss, who previously bared her body in Ashland and Portland while skating in public, said she plans to come back to Ashland once the weather warms up.

She said she will wear a flesh-colored G-string that has curly human head hair attached to the front to resemble pubic hair.

Moss said she might sell the outfits to protesters and nudists who want to appear naked in public but who don't want to deal with the city's anti-nudity ordinance, which she called unconstitutional.

"From afar, I'll look naked and I plan on skating everywhere," Moss said in an e-mail to the Tidings. She added that she will skate in front of elementary schools, although she won't make sexual gestures or spend a lot of time there.

"I'll give out brochures on Earth Friend Gen and The Naked Truth. I am becoming a Reverend and my religion is based on Love and Light and returning to original innocence and the garden of Eden," Moss said.

Councilor Russ Silbiger, who voted for the citywide nudity ban, said he hopes that the nudity issue will quiet down in the long run. He said councilors have many more important issues to deal with than nudity.

Regarding Moss and her plans to return to Ashland and wear her "nude suit," Silbiger said, "If she's following the law, she's following the law. She certainly enjoys the attention. If you're covered up, you're covered up. If it's the worst thing the police have to deal with that day, that's probably a good thing."

Staff writer Vickie Aldous can be reached at 479-8199 or

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