If you’ve been to Times Square in recent years, you will immediately be accosted by a series of cartoon characters–from Micky Mouse to Elmo–asking you to take a picture with them, and then hustling you for a tip. Joining this fray are the so-called “Desnudas.” They are topless women, covered only in body paint, who bump into people and cajole them into taking a picture. The New York Court of Appeals has ruled that women cannot be penalized for going topless in public under an equal protection rationale (men can!). So the City’s hands are tied with prohibiting the Desnudas. But, like any good bureaucracy, they will try to find a way to regulate them.
The Times reports on the difficulty of eliminating this expression:
“It’s wrong,” Mr. de Blasio said of the topless women’s tactics, during a news conference. “We are going to look for every appropriate way to regulate all activity that involves either begging, or asking people for a contribution based on, you know, the opportunity to take a picture, for example.” The mayor added, “I don’t like the situation in Times Square, and we’re going to address it in a very aggressive manner.”
Still, Mr. de Blasio acknowledged that reining in the desnudas was complicated by the protections afforded to artistic expression by the First Amendment. “That doesn’t mean we can’t find legislative and regulatory solutions that still fall within constitutional protections,” he said.
The mayor’s staff declined to provide any details about what restrictions he is considering, saying that lawyers were still studying the issue. Toplessness is legal in New York; aggressive panhandling is not. Corey Johnson, a City Council member whose district includes Times Square, said that he and another councilman, Daniel R. Garodnick, were working on a bill that would limit when and where the desnudas and costumed characters could ply their trade.
Mr. Johnson said on Tuesday that the model would be the “time, place and manner restrictions” the city has placed on street vendors in crowded areas of certain parks, including Central Park and Union Square Park. Those rules created designated spots for a limited number of sketch artists and other street vendors to set up.
Mr. de Blasio put it this way on Tuesday: “Let’s face it. The women in Times Square, or the furry creatures in Times Square, are engaged in a business. We believe that that opens the door for us to enforce the way we would any other business. And we will do so, while still respecting constitutional rights.”
This task will become even more difficult under Reed v. Town of Gilbert. The Seventh Circuit recently invalidated a panhandling statute that was previously upheld, because of the change in law affected by Reed.