How come the nude protesters were not arrested? I read today about the Anti-Censorship Activists in New York (Warning! NSFW pictures inside link) who protested against Facebook while being totally nude out in the street. I'm also pretty sure public nudity is not allowed in the USA. How come they were not arrested or at least warned by police? Is there some exception to the law?
Public nudity is illegal in New York as it is in almost every U.S. jurisdiction. And, if the police had arrested the nude protesters, the arrests probably would have been upheld in court, because a ban on nudity in public would probably be viewed as a time, place and manner restriction on the freedom of speech which is constitutionally valid. For example, the Ninth U.S. Circuit Court of Appeals recently upheld San Francisco’s public nudity ordinance in Taub v. City and County of San Francisco (2017). As the court in that case explains in a factually very similar case: 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, content neutral 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). But, while a court would have made that distinction, the public, which is used to the idea that protesters shouldn't be arrested for protesting, might not. However, under U.S. law, the police are never required to enforce any law. See Castle Rock v. Gonzales. In this case, the NYPD probably just decided that the benefit that the city could have secured by enforcing this law wasn't worth it, in terms of costs to the city, making the city safer, and the public image of the NYPD. For example, the city would have had to pay to book and incarcerate the protestors in crowded and expensive jails, and then fight expensive legal battles in petty misdemeanor court prosecutions to defend the anti-nudity law, an issue that isn't a priority for the city's scarce resources at the moment. There is always a risk that any mass arrest could turn a peaceful gathering into a dangerous riot. And, those anti-nudity laws are on the books primarily do deal with drunks and flashers, not anti-censorship protestors. A loss in court in one of these cases (as unlikely as it might be) would undermine the ability of the NYPD to enforce the anti-nudity law in the kind of cases it was actually intended to address, in which a first amendment challenge would almost surely not succeed. Arresting a bunch of naked people wouldn't be fun and would look bad in on the nightly news, and getting naked protestors off the street wouldn't make NYC a safer place. So, they chose not to enforce a law that they could have enforced if they had decided to do so. Warning the protestors that they were violating the law would also not have served the NYPD's purpose. If they gave a warning and then didn't follow up when the warning was ignored, that would undermine the NYPD's credibility in future protests. And, even a warning could cause fear to spread throughout the crowd increasing the risk of a peaceful protest turning into a dangerous riot. Training materials for law enforcement officers reflect these concerns (see internal pages 55-56 in the linked materials): Mass arrests during demonstrations in Washington, D.C., New York City and other major locales have been criticized. In some cases, the protest activity, while unlawful, was not necessarily violent. Complaints included that law-abiding protestors and passersby were rounded up and detained along with violators in overly broad sweeps. The negative impact of these media images damages the public perception of the police operation, as it draws into question the reasonableness and proportionality of the police response. Subsequent litigation has proven to be particularly costly. In most instances only a tiny number of those arrested actually appear in court and most of those are charged with offenses that would not normally attract an arrest or detention (Temple 2003). Law enforcement agencies need to ensure that operational commanders have a clear and uniform understanding of the mass-arrest policy to be followed. Litigation has included criticism of understaffed prisoner processing operations that, when overwhelmed, led to inordinate detention without charge. This occurred at the Republican National Convention in 2004 and led to court instructions and fines for inordinate delay in processing detained persons (New York Times 2004). Research into recent mass-arrest operations shows that arrests are easily accomplished. The areas where problems arise with sudden, but now predictable, regularity are The quality of evidence available to pursue prosecution against each individual; The logistics of transporting and handling large numbers of prisoners; Allowing legal and medical access; An inordinate delay in arranging for release or bringing persons to court; Not enough police on duty to cope with the above—process centers are frequently overwhelmed at an early stage due to lack of resources; and In some cases, the courts have ruled that top police officials can be held personally liable for damages or actions. Mass arrests are generally advisable only when all alternative tactics have either been tried unsuccessfully or are unlikely to be effective under specific circumstances. When mass-arrest tactics are used, evidence against each individual prisoner must be available to support the charges. Arrest tactics training is a critical component of mission success. The training must address the spectrum of event types: non-violent protest, non-violent civil disobedience, passive resistance (including the use of chains, sleeves and other devices to impede arrest) and violent confrontation. Training must recognize the difference between two arrest scenarios: Arrest tactics where police are in control of the environment and have time to plan and implement the arrests or dispersal in a controlled manner, (e.g., at a sit-down protest); and Arrest tactics where police do not control the environment (e.g., when police are trying to re-establish control of the environment by arresting violent demonstrators). Pressure point techniques, in conjunction with empty hand control, efficient handcuffing, and arrestee escort methods should be included to remove protesters humanely while minimizing risk of injury to protestors and police. Such tactics should be part of ongoing and regular refresher training to ensure officers maintain efficiency. Tactical commanders present at many of the demonstration events reviewed by PERF agreed that unless the actions of certain protestors necessitate their removal, the better course of action is not to expend resources on arrests. For example, in instances where sleeping dragons are situated so as to disrupt traffic, it may be less of a drain on already-thin operational resources to simply monitor them and reroute traffic. Moreover, protest organizers have on occasion scheduled “officer intensive” diversions just before they undertake more violent or destructive actions elsewhere, calculating that the police would be too busy handling the mass arrest to respond to further actions. Pretty much anyone with common sense knows that it isn't smart to disturb a sleeping dragon in the middle of an intersection in New York City. Trying to try to arrest a dragon is very hard and dragons can afford to pay good lawyers with their treasure hordes. But, police also have to consider more difficult choices like the choices presented by this nude protest.
Is this illegal? No, subject to some possible narrow exceptions discussed below. Do the social media companies have a duty under the First Amendment to not censor users? No. Indeed, usually, there is greater liability exposure for failing to censor content, for example, by failing to honor a "take down notice" under Title II of the Digital Millennium Copyright Act based upon an alleged copyright violation, or for failure to censor content related to potential sex trafficking. The First Amendment to the United State Constitution (which applies to state and local government via the 14th Amendment to the United States Constitution) is a limitation on the power of governmental actors only. This said, some state constitutions, such as California's, provide free speech protections not just from government action, but also in spaces that are privately owned, but are open to the public and constitute de facto public forums. The authority of California to expand its state constitutional protections to these private settings was confirmed by the U.S. Supreme Court in the case Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). It is conceivable that these doctrines could be expanded to public Internet forums in the case of California based social media companies (e.g., Facebook has its headquarters in Menlo Park, California; so does its sister platform Instagram; LinkedIn is based in Sunnyvale, California; and Google is based in Mountain View, California). There are also laws that limit how employers can regulate employee speech in a labor relations context, although most of them don't have constitutional dimensions. It is conceivable that these doctrines could limit social media platform's authority to limit some kinds of speech by their own employees, or in situations where the social media platform looked like it was acting as a mere agent of some other employer controlled by that employer for all practical purposes. There has also been litigation related to free speech on social media regarding the rights of governmental account holders to exercise the same kinds of account management that is available to other users, implicating the First Amendment right to petition the government. The social media platform operator is not itself the primary target in these cases, but if it simply implements its terms of service neutrally with respect to all account holders, it could be facilitating a constitutional violation by its governmental account holders and could conceivably be held liable for aiding and abetting that violation of the law by a governmental account holder (in the context of a lawsuit for money damages this is a special subtype of something called a civil conspiracy).
Let's deal with the somewhat misguided notion of "public space": what it means and what it doesn't: "publicly owned" is not equivalent to "public space" - Camp David is "publicly owned"; it is not "public space". "privately owned" can be "public space" - the publically accessible parts of shopping malls are privately owned public spaces. "public space" does not mean you have unconditional access. Access may be limited or subject to restrictions placed on it by whoever has lawful authority over it. For example, the aforementioned shopping mall is not public when the mall is closed, roads may be closed for maintenance, street festivities or emergencies etc. So: if you are in a place where you have permission of the lawful authority to be (public spaces give you this implicitly, private spaces require explicit permission), and the lawful authority has not placed restrictions on photography, and the subject does not have a reasonable expectation of privacy (like they would in a public toilet), and the subject matter is legal (e.g. considering restrictions on sexual or commercial activities), then you can take photographs.
We can start by looking at the text of the law. US federal law 18 USC § 2252A(a)(3)(B) says: Any person who... knowingly... advertises, promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains— (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct... shall be punished as provided in subsection (b). I'm not sure how much posting the name without the link would protect you, given that you posted it with the explicit intent that someone would go and look at it. On the other hand, your intent was not to "advertise" or "promote" it, and you didn't actually "distribute" the material.
The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent. However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act. 1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy. Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.”
You acted illegally in assaulting your fellow student. When you are in public, a person can legally take your picture, and you are not allowed to assault a person because you do not like their legal actions. Any degree of force is excessive except in certain responses to illegal fource, and even the threat of force is excessive. You also have no right to demand that a person prove that they didn't take your picture, and certainly no right to enforce that demand with physical violence.
I believe there are courts that have affirmed convictions for obstructing official business or something along those lines, but the general consensus seems to be that conduct like this is not a crime, or that it cannot be criminalized without violating the First Amendment. The most recent decision on point came just a few weeks ago. In Friend v. Gasparino, No. 20-3644 (2d Cir. Feb. 27, 2023), a man sued police for arresting him because he had set up a sign saying &quot;Cops Ahead&quot; two blocks away from where they were running an operation to enforce distracted-driving laws. The trial court dismissed the case, holding (1) that the sign was not protected by the First Amendment because it was &quot;of little, if any, public concern&quot;; and (2) that even if it was protected, the officer's conduct in arresting him satisfied strict scrutiny because if police wanted to prevent distracted driving, there was no less restrictive alternative to arresting the plaintiff. But the Second Circuit reversed, holding (1) that speech remains protected even if it is not a matter of public concern; and (2) that there was no evidence that limiting the plaintiff's speech was necessary to permit the state to write citations and enforce the law, even if it would have been helpful.
There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement.