Should topless women be banned in Times Square?

Story highlights

  • Errol Louis: Controversy over women in Times Square posing topless with tourists has Mayor de Blasio mulling ways to stop it
  • Law is clear: Topless women, peaceful panhandling are legal
  • Times Square can be tawdry, but it's vital -- as is protecting democracy, he says

Errol Louis is the host of "Inside City Hall," a nightly political show on NY1, a New York all-news channel. The opinions expressed in this commentary are solely those of the author.

(CNN)New York City Mayor Bill de Blasio has decided that when it comes to Times Square, no nudes is good nudes. But his newly announced crusade against a recent phenomenon of women walking around mostly naked at the Crossroads of the World will likely run into a legal barrier -- as it should.

Errol Louis
For months, the normal carnival-like scene in Times Square has included young women, many of them Latin American immigrants, who are clad only in body paint and thongs and pose for photos with passersby in exchange for tips. There's little or no physical contact or lewd conduct -- the women have beefy male assistants who hold the money and make sure spectators keep their hands to themselves -- but some tourists have complained that they'd rather not see so much flesh, especially while traveling with children.
Despite the shrug of most New Yorkers, who are famously indifferent about a wide range of human behavior, City Hall's patience came to an end when the New York Daily News ran a string of front-page stories about topless women "taking over" Times Square.
"This situation is going to change, this is what I'll guarantee you," de Blasio recently told members of the media. "I'm not going to tolerate it, we're going to change things."
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"This is a serious issue," said Gov. Andrew Cuomo in a telephone interview with NY1. "I was around for the bad old Times Square, and this is starting to remind me of the bad old Times Square."
That's an exaggeration. The "bad old Times Square" was a moral and public safety nightmare, where X-rated theaters were plentiful and a veritable army of hookers, dope dealers, con artists, pickpockets and muggers had full run of the streets well into the 1990s. Today's scene features much less scary street people. In addition to the painted ladies, Times Square on any given day has a group of characters in costumes, offering kids a chance to take a picture with Spiderman, Batman, Buzz Lightyear or Elmo -- once again, in exchange for a tip.
In contrast to the nudes, the costumed characters occasionally get physical, squaring off against hecklers and mixing it up with the real-life superheroes of the NYPD. One character dressed as Cookie Monster was recently arrested for allegedly groping a teenage tourist, and cops busted women dressed as Minnie Mouse and Hello Kitty when they came to blows in a dispute over money.
I asked James O'Neill, the highest-ranking officer in the New York Police Department, whether he saw a serious problem of disorder breaking out because of the nudes. "This is more of a nuisance than a crime issue. It's a congestion issue," he told me.
It's also a matter of money. Times Square businesses -- not to mention companies like Disney, horrified by the unauthorized use of their trademarked characters -- have complained about the costumed characters for years. But American courts -- including the Supreme Court, as long ago as 1974 -- have held that artistic expression is protected by the First Amendment right to free speech, and that walking around like Elvis or Iron Man, while not exactly high art, is covered by the same legal protection.
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Nude performance is artistic expression, according to the Supreme Court. And New York law allows men and women to legally go topless in public.
Another set of court rulings has found that peacefully panhandling -- asking for tips -- is also a constitutionally protected form of free speech.
Line up all the cases, and the outcome is what we currently have in Times Square: Costumed characters and nude women are allowed to be there, and if they ask for a tip (rather than charge fees like a business), they aren't breaking the law.
De Blasio's top aides, frustrated by their inability to ban or restrict the women and costumed characters, are considering the radical step of simply eliminating the public plaza on which the operations take place.
"I'd prefer to just dig the whole damn thing up and put it back the way it was," NYPD Commissioner Bill Bratton recently told radio station 1010 WINS, referring to a time before the current plaza was created, when the center of Times Square was a thoroughfare for car traffic.
Bratton's words sparked an immediate backlash from transportation advocates, but the administration still has a less harsh trick up its sleeve: declaring the concrete plaza to be parkland and transferring it to control of the city's parks department. Under the law, parks aren't public space in the same way sidewalks are. Cities can limit who can be there and what kinds of activities they can engage in.
It would be a shame if the mayor took that path. The motion and energy of Times Square and places like it -- and yes, the cheesy and tawdry antics of some "performers" -- are all part of what makes for a robust marketplace of ideas and cultures.
Everybody likes free speech until they hear something they really don't care for, but that's not what the Constitution is about. The real challenge is to support the right of people to say and do things in public that seem silly, objectionable, hateful or even obscene. That long-running struggle, reflected in the nude women of Times Square, isn't just about decency: It's a small but important exercise in democracy.