SACRAMENTO / Judge tosses a blanket on topless protest / Breasts Not Bombs told nudity not part of free-speech rights

2005-11-05 04:00:00 PDT Sacramento -- A federal judge denied on Friday a request from a group of Mendocino women who wanted to protest topless on the grounds of the state Capitol.

U.S. District Judge Garland Burrell said the group made no compelling argument that showing their breasts constitutes free speech.

"Being topless is not inherently expressive" speech, Burrell said. The group, Breasts Not Bombs, had scheduled a protest for noon Monday. The California Highway Patrol threatened to arrest anyone who went topless.

Sherry Glaser, a leader of the group, said the protest may take place without bare breasts.

"All we really have is the power of ourselves," she said. "Our bodies bring attention."

Group members, whose protest on the west steps of the Capitol is intended to contrast the "indecent" initiatives backed by Gov. Arnold Schwarzenegger on the November ballot with their "natural and decent" breasts, sought a temporary restraining order prohibiting CHP officers from arresting women who protest topless.

The First Amendment protects their right to protest bare breasted, the group argued. "The very act is a dynamic and fully expressive statement worthy of constitutional protection," their brief asserts.

But Burrell didn't buy that argument.

"Do you think the founding fathers had this in mind when they drafted the First Amendment?" he asked Matthew Kumin, the lawyer representing Breasts Not Bombs.

Lawyers for the state said no previous group has been allowed to protest on Capitol grounds unclothed. Those protesters who have disrobed were ordered to put their clothes on or face arrest.

"It has always been our policy that we do not allow nudity on the Capitol's grounds," said Tom Marshall, a CHP spokesman.

Allowing public nudity on the Capitol grounds would also be disruptive and possibly dangerous, the state argued.

"The state Capitol is a destination for California residents and tourists from around the world. Hundreds of California schoolchildren visit on a daily basis. They often enjoy their lunch on the west steps of the Capitol," the lawyers for the attorney general's office wrote.

"What visitors to the Capitol do not and cannot expect is to see topless adults and children engaged in public nudity under the guise of political protest."