Op-ed: Is Nudity in the Eye of the Beholder?

Left: Will X. Walters

"Don't believe your own eyes."

That's what the San Diego Police Department and City Attorney's Office are basically saying in the case of Will Walters, who was arrested for public nudity at San Diego's Pride festival three years ago.

Apparently, a federal court judge who had previously ruled against dismissals in Walters's civil rights case against the SDPD -- but who recently granted summary dismissal of his lawsuit -- followed their instructions too.

But, Walters hopes, judges on the Ninth Circuit Court of Appeals will believe their eyes.

After all, a mere glance at Walters's photos from that day (at left and below) reveal that while he was wearing a revealing leather outfit, he was definitely not nude.

But what if my eyes decieve me? What if the San Diego police were correct in arresting Walters for public nudity?

If our eyes do indeed deceive us and the photos here do indeed depict a nude Will Walters, then three astonishing implications must be drawn from his arrest:

Astonishing implication number 1: A conservative newspaper published nude images.

If the arresting officers were correct about Walters being nude, San Diego's famously conservative newspaper, the Union-Tribune, ran photos of a smiling naked man in print and online -- plain as day, for families and children to see -- without any censor bars to cover his private parts.

Then again, Walters's Pride Day photos needed no censoring. As anyone can see, his private parts are covered.

Astonishing implication number 2: Deputies denied inmate clothing.

If San Diego police officers were correct about Walters being nude, the Sheriff's Department, which runs the jail, kept him nude the entire time he was detained as the department's wrongfully arrested "guest."

That means, contrary to law and human decency, sheriff's deputies kept Walters naked throughout inmate processing and continued keep him nude during the entire time he was in custody, alongside presumably fully clothed inmates.

Human rights groups would call that torture. Fortunately, deputies knew Will Walters was wearing clothing -- they could see that he wasn't nude. Their eyes didn't decieve them.

Astonishing implication number 3: City attorney says, "Parade nude with legal impunity."

The city attorney did not charge Walters with public nudity. So, if police were correct in arresting Walters for nudity, that means the San Diego city attorney set a precedent that says it's actually just fine to promenade naked in public places in San Diego. Don't worry about being prosecuted. You may be arrested, but you won't face nudity charges in court. At least, not judging by Walters's experience.

Even the federal judge who recently threw out Walters's discrimination and wrongful arrest lawsuit against the city never affirmed the legitimacy of his arrest for public nudity.

Unfortunately, Judge Cathy Ann Bencivengo was profoundly blind to the clearly discriminatory way the SDPD enforces nudity laws at straight events versus at gay events.

Granted, justice is supposed to be blind in terms of not favoring white people over people of color, men over women, or straight people over LGBT folks. The idea of blind justice is that if you can't see race, you can't favor one race over another. That's good blind justice.

But that doesn't mean that a judge should be blind to the facts of a case. Judge Cathy Ann Bencivengo should have believed her eyes when she saw the photos marked here with the words "NOT ARRESTED" and "ARRESTED," respectively.

Not arrested were women at an annual (predominantly straight) event, wearing swimsuits that reveal as much of their bodies as Walters's attire, shown in the photo at right, revealed of his -- or more.

Yet somehow Judge Bencivengo did not see the double standard these photos clearly reveal. Nor was she convinced by the testimony of an officer who said he was aware of "a more relaxed standard" of enforcement of nudity laws for scantily clad women at the beachside event where these photos were taken, compared to stricter enforcement at events like Pride.

By definition, that is discriminatory enforcement of the law -- a violation of the Fourteenth Amendment, which requires equal enforcement of the law for everyone.

Regardless of the clearly visible double standard, Bencivengo denied Walters a chance to bring his lawsuit before a jury, where he could have argued that that local police violated his Fourth and Fourteenth Amendment rights to freedom from unreasonable search and seizure, and discriminatory law enforcement.

Most observers were shocked by her decision. Walters has asked the Ninth Circuit Court of Appeals to overturn Judge Bencivengo's dismissal of the case and allow it to go to trial. He and his attorneys are confident that a jury of ordinary people with enough courage and common sense to believe their own eyes will render a fair verdict.

But if the Ninth Circuit fails to give Walters his day in court, those who tell us that only what they say is true, that we're not to believe our own eyes, those people will have succeeded in chipping away at democracy.

Walters invokes a classic Hollywood film to make his point:

"They remind me of the man behind the curtain claiming to be the great and powerful Oz in The Wizard of Oz," he says. "He tells Dorothy, the Tin Man, and everyone else to 'pay no attention to that man behind the curtain.' But they can clearly see it's him speaking into a microphone, pulling levers and blowing smoke in order to intimidate them into believe he has all the power."

In order to keep democracy healthy, free people must expose political and police "illusionists," even when they wear badges, says Walters.

"Instead of making us believe they're wizards, in real life, those who abuse their power -- which is really only on loan to them from the people -- they rob of us our power, and come between us and our rights when we let them get away with those abuses."

Sadly, most people don't respond to having their rights violated by authorities the way Walters has. In addition to suing police, he has also founded a nonprofit called FreeWillUSA, that is dedicated to teaching young people, especially LGBT youth, about the U.S. Constitution, including the Bill of Rights.

"The idea of FreeWillUSA's Speaking of Freedom program and our Know Rights or No Rights campaign is to make the Bill of Rights and the Constitution exciting to young people," says Walters. "I think sometimes it's easy to make the subject of civil rights boring and abstract in the schools. Along with my team, I hope to make young people energized and informed about their rights."

His organization's Speaking of Freedom program pays for accomplished filmmakers, celebrities, entrepreneurs and explorers from all over the country to speak at public schools about how the Bill of Rights made their success possible.

As Walters frequently tells young audiences, we're more powerful when we know our rights, and we're also more powerful when we believe our own eyes.

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THOM SENZEE is an award-winning journalist based in Southern California. He currently serves as Advocate.com's world news correspondent and as a Huffington Post signature blogger. Thom is also founder and moderator of the LGBTs in the News panel series and author of the All Out Politics syndicated column.