Another Tunick Reprieve - Spencer Tunick and nude photography in New York City - Brief Article

Art in America, Sept, 2000 by Cathy Lebowitz

On June 3, the U.S. Supreme Court refused the City of New York's final attempt to prevent artist Spencer Tunick from moving ahead with a photo shoot to produce one of his panoramic cityscapes containing numerous unclad individuals. This is a genre for which he's becoming increasingly well known both in the art world and in the courts. The artist had been granted an injunction to prohibit police interference for a proposed photo shoot last year. The city then obtained a stay of that ruling [see "Front Page," Nov. '99]. The Supreme Court's action allowed the 5:30 A.M. photo shoot, involving some 100 nudes arranged in a dense formation on a residential city street, to take place on June 4.

The case had bounced around the courts for a year before the city took it to the Supreme Court. At issue was whether art activities such as Tunick's are protected by an existing exemption to the state law banning public nudity; also in dispute was which court, federal or state, should decide. In a Mar. 24 opinion, the U.S. Court of Appeals for the Second Circuit cited the lack of adequate precedents for interpretation of the statute by state courts, and criticized the city's advocacy of "an interpretation that would single out and ban photo shoots, however artistic and whether indoors or outdoors, but would authorize other types of nude performances, at least indoors, regardless of how erotic and/or lacking in artistic content."

The federal court sent the case down to the state appeals court to decide on three questions: whether Tunick's proposed photo shoot constitutes entertainment or performance in a play, exhibition or show; if so, whether the exemptions to the anti-nudity law are limited to indoor activities; and third, if the exemptions so interpreted are valid under the U.S. Constitution. Citing the need for an "expeditious resolution," the state court declined to rule on these questions. On May 19, the U.S. Court of Appeals finally ruled in favor of the artist, instructing that the police be barred from arresting Tunick before he creates his art works.

The city then applied to the Supreme Court to overturn the U.S. Court of Appeals decision. Justice Antonin Scalia referred the case to the whole court, which denied the city's appeal, leaving the favorable lower court ruling in place.