By Marc J Randazza

The Oregonian reports, delightfully, Man arrested after 'masturbating vigorously' in public because he 'hates Portland'.

So would his rationale change this from just a run-of the mill date with Palmela Handerson into protected activity?

It just might.

After all, nudity can be so ennobled, so why not evicting the testicular squatters?

A few years ago, a guy decided to take his vintage 10-speed bicycle for a spin through the streets of Portland while wearing nothing but a bicycle helmet.

Portland Police were not amused. They arrested Hammond for indecent exposure under Portland, Or., City Code § 14.24.060, which states that "it is unlawful for any person to expose his or her genitalia while in a public place, or a place visible from a public place, if the place is open or available to persons of the opposite sex." However, Mr. Hammond's conduct was held to be protected speech.

A few weeks after he participated in the World Naked Bike Ride in Portland, Hammond and a friend were dismayed at the amount of traffic in front of his house. He and Geis then stripped down and held their own small nude bike ride to "express a message in support of bikes and against cars, foreign oil, the Iraq war, and air pollution." (source) The appropriately-named Multnomah County Judge Jerome LaBarre (you can't make this stuff up) dismissed the inevitable charges that followed.

LaBarre said the city's annual World Naked Bike Ride — in which as many as 1,200 people cycled through Northwest and downtown Portland on June 14 — has helped cement riding in the buff as a form of protest against cars and possibly even the nation's dependence on fossil fuels. (source)

Hammond's defense that his nakedness was protected expression and therefore beyond the purview of the Oregon nudity ordinance drew support from Portland v. Gatewood, 76 Ore. App. 74 (Or. Ct. App. 1985). In that case, the Appellee argued that the language of Portland City Code § 14.24.060 was overbroad because it prohibited speech that is protected under Article I, Sect. 8 of the Oregon Constitution, a provision that is even more protective of free speech rights than the First Amendment. Under the ordinance's plain language, nude protests or theatrical productions would be banned. The Oregon Court of Appeals upheld the ordinance, but did so by interpreting it as containing implied constitutional safeguards.

We read the challenged ordinance as focusing on the goal of regulating conduct which the city council has determined to be injurious to health, safety and morals, i.e., the prohibition of public nudity or indecent exposure not intended as a protected symbolic or communicative act. Id. at 82.

The Gatewood court also held that "[t]he question of whether nudity in a particular case is a symbolic or communicative act is a question of fact." Apparently, in Hammond's case, Judge LaBarre determined that the facts supported Mr. Hammond's position that he was engaged in symbolic political speech — thus the Ordinance (under the view expressed in Gatewood) did not apply. In a similar case, in Oregon, a guy who stripped naked to protest the TSA was also acquitted.

Meanwhile, a Federal Court in Utah held that masturbation is not protected activity. In Bushco v. Shurtleff, Judge Dee Benson rejected an argument that restrictions on masturbation "for a fee" did not violate the First Amendment. But, that is certainly distinguishable from this case.

So what about our humble protagonist? Protected activity, or is that just whack?

According to the article,

When Andreassen saw the officer, he "put his penis back in his pants and began to walk away." Documents say that when the officer asked Andreassen whether or not it was appropriate to masturbate in public and why he was doing it, Andreassen told the officer that he was on meth and wanted to go back to prison, because he "f–ing hates Portland."

Therefore, I'd say on balance, the "hi I am on meth" probably renders his free speech defense rather flaccid. His stated wish to go back to prison just might be granted.

However, I think that the Gatewood decision leaves the question open as to whether you might be able to beat off in public there because you "fucking hate Portland."

Expression of hate for a municipality would seem to be core protected activity. And, being on meth or wanting to go to jail probably shouldn't change your constitutional rights, the Greenwood decision makes it clear that the trier of fact has to decide whether the otherwise-indecent conduct is communicative or expressive.

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