In the finest Puritan tradition, Middlesex District Attorney Gerald Leone is crusading to save Harvard Square from the shock and awe of the nude human form. The next act of this absurd political-theater production will return to Cambridge District Court this Friday, at considerable expense to taxpayers.
Most of the street performers in the Square are innocuous, but some can be edgy. On June 25, 2005, street performer and political activist Ria Ora danced naked in the Pit. It wasn’t gratuitous nudity; she purported to be denouncing the commercialization of Christmas on the half-year anniversary of that holiday.
But Ora’s nude dancing apparently offended an employee of the Out of Town News kiosk, who called the cops. The officers arrested Ora and persuaded the Cambridge District Court clerk to issue a complaint against her for “open and gross lewdness.”
Judge Severlin Singleton III dismissed the charges the first time around, reasoning that the lewdness law as written is “[a] blanket prohibition against public nudity” that unconstitutionally “proscribes expressive conduct protected by the First Amendment.” When the DA appealed, the Supreme Judicial Court (SJC) reversed Singleton’s decision. That appellate ruling not only prolongs the case against Ora, it makes it harder for adventurous street performers to express themselves.
According to the SJC, the lewdness law may be invoked only if two conditions co-exist: the “lewdness” (in the Ora case, nudity) is “imposed on an unsuspecting or unwilling audience,” and “the display of nudity [is] intentional, done in a manner to produce alarm or shock, and actually [produces] alarm or shock.”
Almost all street-performance art, including art that is conceivably offensive to some audience member, is by its nature “imposed on an unsuspecting or unwilling audience.” But why should we single out Ora’s performance — given the Square’s off-beat atmosphere — as being particularly alarming or shocking, and leave it unprotected under the First Amendment?
The SJC has given the DA another chance to fit the facts into a narrowed reading of the law, but successful prosecution still seems unlikely. Many forms of expression, after all, “produce alarm or shock” — including nudity in such familiar contexts as movies — but are nonetheless protected.
In one famous example, a young anti-war protester, Paul Cohen, was convicted in 1968 for wearing a jacket emblazoned with FUCK THE DRAFT inside the Los Angeles Courthouse. The US Supreme Court threw out his conviction in Cohen v. California, in part because the justices recognized that his use of “fuck,” shocking though it may be to an involuntary audience, was integral to his forceful political message. As Justice John Marshall Harlan observed in Cohen, perceptions of offense are always subjective; indeed, “one man’s vulgarity is another’s lyric.”
The SJC’s attempt to determine whether a public act is alarming or shocking, and therefore potentially lewd and prosecutable, does not seem to jibe with Cohen’s recognition that shocking the audience is one function of free expression — not a ground for censorship. Still, the SJC’s definitions will govern the “open and gross lewdness” prosecution on Friday.
It’s possible the DA recognizes that, despite his victory at the SJC, the lewdness prosecution is eventually doomed. If Ora is convicted and her lawyer, Daniel Beck, was to take the case to federal court, the charges would likely not withstand a First Amendment challenge. Plus, as Beck told Singleton in a recently filed brief, the lewdness complaint never should have been issued against Ora in the first place, since those charges in Massachusetts have been successfully prosecuted only when the cases involved “overtly sexual behavior in public”; a defendant who “exposed himself to a targeted person . . . , usually minors (so-called flashing)”; or a defendant who “exposed himself in the attempt or commission of a sexual assault.”
According to Beck, the evidence the clerk heard when issuing the complaint against Ora wasn’t consistent with any of those situations. And if the SJC requires “alarm or shock,” what Ora did doesn’t stack up, either. Beck is rightly asking the judge to throw out the case (again).
This may be why the DA has supplemented the charges against Ora by seeking a new complaint for “indecent exposure,” on the assumption that somehow the proof needed for that charge would be lower than for “open and gross lewdness.” This application, too, will be heard on Friday. But since Ora’s conduct is likely constitutionally protected, it doesn’t matter whether it’s described as lewdness or indecency. The Middlesex County DA is grasping at straws, playing with words, and wasting taxpayer money.
Harvey Silverglate is a criminal-defense and civil-liberties lawyer and writer. James F. Tierney is an incoming law student at the University of Chicago and was Silverglate's research assistant this year.
