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View Diary: Firearms Law and Policy Open Thread - What is a background check anyway? Wednesday Nov. 6, 2013 (74 comments)

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  •  The standard is "prurient interest" (7+ / 0-)

    The example I gave was in New York State women have a right to go topless in public the same way men do. E.g. a woman sunbathing topless in Central Park can not be arrested for doing that. But that doesn't mean any woman can walk into a church topless, walk down the street topless and create a public disturbance, or let their 17 year old daughter go topless on her way to/from school, etc.

    The 17 year old daughter is a minor person under statute,
    and that means a whole different body of law comes into play.
    I'd opine the church or street charge of "public disturbance" has been settled law.  Often ignored, but none the less settled law.  The continued enforcement against topless women, who are not doing so with intention of creating "prurient interest", has resulted in civil compensation in the order of several thousand dollars.

    More than 10 years later, Jill Coccaro was arrested in 2005 on Delancey Street for going topless, but sued the city and received $29,000 in a settlement.
    ~ The Village Voice 2011

    Case Decision:

    Appellants and the five other women who were arrested with them were prosecuted for doing something that would have been permissible, or at least not punishable under the penal laws, if they had been men -- they removed their tops in a public park, exposing their breasts in a manner that all agree was neither lewd nor intended to annoy or harass. As a result of this conduct, which was apparently part of an effort to dramatize their opposition to the law, appellants were prosecuted under Penal Law § 245.01, which provides that a person is guilty of the petty offense of "exposure" when he or she "appears in a public place in such a manner that the private or intimate parts of his [or her] body are unclothed or exposed." The statute goes on to state that, for purposes of this prohibition, "the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola."[n 1] The statute thus creates a clear gender-based classification, triggering scrutiny under equal protection principles (see, Craig v Boren, 429 US 190).
    My use of bold below.
    Viewed against these principles, the gender-based provisions of Penal Law § 245.01 cannot, on this record, withstand scrutiny. Defendants contend that apart from entrenched cultural expectations, there is really no objective reason why the exposure of female breasts should be considered any more offensive than the exposure of the male counterparts. They offered proof that, from an anatomical standpoint, the female breast is no more or less a sexual organ than is the male equivalent (see, e.g., J McCrary, Human Sexuality [1973] 141). They further contend that to the extent that many in our society may regard the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent (but see Kinsey, Sexual Behavior in the Human Female [1953] 586-587; Kinsey, Sexual Behavior in Human Male [1948] 575; Wildman, Note on Males' and Females' Preference for Opposite-Sex Body Parts, 38 Psychological Reports 485-486), that perception cannot serve as a justification for differential treatment because it is itself a suspect cultural artifact rooted in centuries of prejudice and bias toward women.
    Mere possession and display of female breasts, carried in public; in a non-commercial, non-threatening manner, appears to be protected both as an act, and as a manner of protest, against a perceived bias in the law.

    The nexus of this public right, carried into a public space, used by a religious organization or for the purposes of worship; where the faith requires women to be dressed conservatively to fully concealed - would be a Constitutional challenge.  (an open-air religious service comes to mind)
    Private right to public space, verses the free exercise thereof clause of the First Amendment.

    Private rights, extending to private property, not held in-common, would render those private rights moot. As the collective (religious organization) has an accepted tenet against such behavior, and holds title or lease to the property.

    Much the same holds for the Second Amendment, and the right to Open Carry.
    If a firearm held in the hands, while in public spaces, in a manner indicating imminent use, I'd opine there's a perceived threat warranting police action.
    Slung or holstered, regardless of visibility, is not an indication of imminent use.
    That I, holding title or lease to a private property, may deny access to that property by topless women and persons displaying firearms - is settled law.
    Unless she's breastfeeding a dependent child.
    That's protected.

    Publicly breastfeeding a 45 year old man, as "that's our kink" isn't protected, as it fails the prurient interest test.

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