NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OXANE TAUB, "Gypsy"; GEORGE 

DAVIS, 

Plaintiffs-Appellants, 

 v. 

CITY AND COUNTY OF SAN 

FRANCISCO; SAN FRANCISCO POLICE 

DEPARTMENT, 

Defendants-Appellees.

No. 15-16415 

D.C. No. 3:12-cv-05841-EMC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Submitted May 18, 2017**

San Francisco, California

Before: TALLMAN and IKUTA, Circuit Judges, and OLIVER,*** Chief District 

Judge.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Solomon Oliver, Jr., United States Chief District 

Judge for the Northern District of Ohio, sitting by designation.

FILED

MAY 25 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Plaintiffs Oxane “Gypsy” Taub and George Davis (collectively, 

“Plaintiffs”), self-described body freedom advocates, appeal the dismissal of their 

claims under 42 U.S.C. § 1983 against the City and County of San Francisco and 

the San Francisco Police Department (collectively, “Defendants”). Plaintiffs allege 

that Defendants violated their First Amendment rights by enforcing San 

Francisco’s public nudity ordinance, S.F., Cal., Police Code art. 2, § 154. We 

review de novo the district court’s order granting Defendants’ motion to dismiss 

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Starr v. Baca, 652 

F.3d 1202, 1205 (9th Cir. 2011). We have jurisdiction under 28 U.S.C. § 1291, 

and we affirm.

1. Public nudity is not inherently expressive, but it may in some circumstances 

constitute expressive conduct protected under the First Amendment. City of Erie v. 

Pap’s A.M., 529 U.S. 277, 289 (2000) (O’Connor, J.) (plurality opinion). Even if 

Plaintiffs’ public nudity at political rallies was entitled to First Amendment 

protection, however, we hold that the challenged ordinance is a valid, contentneutral regulation as applied to Plaintiffs’ expressive conduct under United States 

v. O’Brien, 391 U.S. 367 (1968). O’Brien is the applicable test here because the 

ordinance is aimed at “the conduct itself, rather than at the message conveyed by 

that conduct.” United States v. Swisher, 811 F.3d 299, 312 (9th Cir. 2016) (en 

banc).
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The challenged ordinance satisfies each of the four O’Brien factors. See 

O’Brien, 391 U.S. at 377. First, restricting public nudity falls within San 

Francisco’s traditional police powers. Pap’s A.M., 529 U.S. at 296 (O’Connor, J.) 

(plurality opinion). Second, the ordinance furthers San Francisco’s important and 

substantial interests in protecting individuals “who are unwillingly or unexpectedly 

exposed” to public nudity and preventing “distractions, obstructions, and crowds 

that interfere with the safety and free flow of pedestrian and vehicular traffic.” 

S.F., Cal., Police Code art. 2, § 154(a); see also Pap’s A.M., 529 U.S. at 296 

(O’Connor, J.) (plurality opinion) (describing the governmental interest in 

regulating public nudity and its secondary effects as “undeniably important”); 

Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1024 (9th 

Cir. 2009) (recognizing that cities have a substantial interest in “regulating streets 

to protect and insure the safety, comfort, or convenience of the public” (internal 

quotation marks omitted)). Third, San Francisco’s interest is unrelated to the 

suppression of free expression, because the ordinance regulates public nudity 

whether or not it is expressive. See Clark v. Cmty. for Creative Non-Violence, 468 

U.S. 288, 299 (1984). Fourth, “the incidental restriction on alleged First 

Amendment freedoms is no greater than is essential to the furtherance of that 

interest.” O’Brien, 391 U.S. at 377. The ordinance prohibits only exposure of 

one’s “genitals, perineum, or anal region,” during daily activities in the streets of 
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San Francisco, S.F., Cal., Police Code art. 2, § 154(b)–(c), which is essential to 

meet the City’s goals of preventing distraction and offense to citizens not 

expecting to be confronted with such private parts of other persons’ anatomy. See 

O’Brien, 391 U.S. at 377.

For these reasons, we find that the challenged ordinance is a valid restriction 

under the test set forth in O’Brien, and we affirm the district court’s dismissal of 

Plaintiffs’ claims arising out of Defendants’ enforcement of the ordinance.

2. Plaintiffs’ claim that the public nudity ordinance constitutes an unlawful

prior restraint also fails. Assuming arguendo that Plaintiffs’ nudity at Bay to 

Breakers and the Haight Street Fair in 2014 was expressive conduct, Plaintiffs 

were issued citations after their allegedly expressive conduct had already occurred. 

See Alexander v. United States, 509 U.S. 544, 550 (1993). Moreover, the 

procedural requirements imposed on prior restraints do not apply to “a contentneutral permit scheme regulating speech in a public forum,” Thomas v. Chi. Park 

Dist., 534 U.S. 316, 322 (2002), much less to a content-neutral ordinance aimed at 

conduct.

Nor did the Defendants’ denials of (or failure to respond to) Plaintiffs’ 

parade permit applications violate Plaintiffs’ First Amendment rights. Although a 

content-neutral permit requirement may be invalid under the First Amendment if 

the ordinance “delegates overly broad discretion to the decisionmaker,” Forsyth
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County v. Nationalist Movement, 505 U.S. 123, 129 (1992), here the permitting 

ordinance “contain[s] adequate standards to guide [officials’] discretion,” and 

Plaintiffs have not otherwise presented “evidence of a pattern of abuse” to suggest 

that the Defendants favored some permit applicants over others, S. Or. Barter Fair 

v. Jackson County, 372 F.3d 1128, 1139–40 (9th Cir. 2004) (internal quotation 

mark omitted) (quoting Thomas, 534 U.S. at 323).

3. The district court did not abuse its discretion in refusing to grant Plaintiffs 

leave to further amend their complaint. Plaintiffs request leave to amend the 

Second Amended Complaint in order to plead additional facts relating to the 

expressiveness of their nude rallies and demonstrations. Because we conclude that 

San Francisco’s public nudity ordinance is a valid regulation under the O’Brien

test, even if we assume that more of Plaintiffs’ conduct was likely to communicate 

a message to those who saw it, Plaintiffs’ complaint would not be saved through 

further amendment.

The district court’s dismissal of Plaintiffs’ complaint is AFFIRMED. Each 

party shall bear their own costs of this appeal.