ARKANSAS LAW § 5-68-204
VIOLATES FIRST AMENDMENT RIGHTS
Disclaimer: The intent of this website is to make the public aware of a law that violates every provision of the First Amendment. This website does not “promote” or “advocate” nudism. It does, however, “promote” and “advocate” the First Amendment of the United States Constitution. This website does not attempt to convince readers to try nudism; it simply describes how Arkansas law § 5-68-204 violates the First Amendment, as well as other fundamental American values, and the state's own Constitution.
I have found the most common belief regarding this law is that someone needs to get arrested in order to challenge it in court. That approach has worked for many causes, but Arkansas' anti-nudism law is unique because it is virtually impossible to get arrested for breaking it. Here's why I say that... Let's say you decide to challenge the law via civil disobedience. You can do that one of five ways:
Practice nudism in public
Practice nudism in your house
Advocate or promote nudism in public
Advocate or promote nudism in your house
Establish and operate a naturist resort, B&B, or similar venue.
Method 1. If you choose to practice nudism in public and get arrested, you will most likely be charged for violating 5-14-112 (Indecent Exposure) instead of 5-68-204 (Nudism). There are two reasons for that:
1. Law enforcement and prosecutors don't even know 5-68-204 exists. (See article at http://www.arktimes.com/arkansas/group-wants-arkansass-prude-nude-law-revoked/Content?oid=4345924.)
2. Even if they did know about it, a prosecutor is going to realize 5-68-204 is unconstitutional, and there's no reason to risk loosing a case when he/she can simply convince a judge/jury that you "knew your conduct was likely to cause affront or alarm" (language from Indecent Exposure law). Given the society we live in, that will be easy to do. You and I know naturism is harmless and relaxing, but that is irrelevant because we also know our society is irrationally freaked out by nudity. So a prosecutor could easily make the case that you knew public nudity "was likely to cause affront or alarm" even if that was not your intent. And people like us probably won't be on the jury to act as a voice of reason.
Furthermore, even if you win, the anti-nudism law never came into play, which means you will have spent a bunch of time and money with no impact on getting it repealed.
Method 2. If you choose to practice nudism in the privacy of your home or back yard, then law enforcement isn't going to be aware of it. You would have to report yourself for breaking the law. (And probably have to educate the officers about the law you are breaking.) Once they realize the act of nudism is NOT causing a public disturbance, they're probably not going to bother arresting you. But if they did, the prosecutor again is going to realize the law is unconstitutional and drop the case (rather than hurt his/her record by losing it).
Method 3. Let's say you go to a public event (with your clothes on this time), set up a booth, and hand out flyers that advocate and/or promote nudism. The cops aren't going to arrest you because: a) they don't know about the law, and b) you're not causing a public disturbance. (And if you were causing a public disturbance, then they would arrest you for that, not for advocating nudism.)
Method 4. Advocating nudism in your house would fail for the same reasons as method 2.
Method 5. This method might actually work, but you'd have to be quite wealthy to open and operate a naturist establishment and still have enough money to fight a legal battle.
So then... If it's next to impossible to challenge the law by getting arrested, what's the way forward? I believe we need to get the Arkansas Supreme Court to make a "declaratory judgement" on 5-68-204. (i.e. They would make a statement as to whether or not the law is constitutional.) If I understand correctly, a declaratory judgement alone does not repeal the law, but it would be a big step towards that end. (It will be easier to convince elected representatives to repeal the law once the Judicial branch has already declared it unconstitutional.)
Arkansas is the only place I know of that violates free speech with regard to nudism, but there are many laws across this nation that violate naturists' right to peaceably assemble. My goal is to get this law repealed on the basis that it violates every provision of the First Amendment. Doing so will set the precedent that it is NOT ok to violate the Constitutional rights of naturists (also known as American citizens). States often use each other's court ruling as precedents in their own trials, so setting this precedent would (slowly, but surely) result in many anti-nudism laws being challenged and repealed across the country.