In case you don’t spend much time in New York City (and let’s face it… if you’re not being paid to, why would you) you may have missed some of the recent changes. In just the last few years a large section of Times Square was entirely blocked off to vehicular traffic and converted into a “pedestrian plaza” for both tourists and locals alike. This turned out to be a rather popular idea for a while and attracted all sorts of folks who wanted to sit on the fancy new benches and take in all the high tech billboard displays. But it also attracted something else… the “desnudas.” These young women parade around the square generally dressed in nothing but a thong with some outrageous hat or other flashy accessories. But there’s nothing covering their upper torso except body paint, frequently patriotic in nature or promoting the I Love New York theme. They also offer to stop and pose for pictures with tourists if you’re willing to give them a donation. In other words, they are panhandlers with a sure fire gimmick to make some money.

This has raised more than a few complaints, particularly from parents visiting the area with their children. The kvetching has reached the ears of the mayor and Bill de Blasio is wrestling with a possible solution. One idea he’s considering thus far is to simply bulldoze the entire thing under. (WaPo)

Thursday, Mayor Bill de Blasio, who has commissioned a city hall task force to consider the problem, suggested one dramatic solution: Maybe the city should just do away with the Times Square pedestrian plaza that attracts these women and other hustlers in the first place.

It’s time, he said, to give “a fresh look” to the revamped destination, which was converted to great fanfare under the Michael Bloomberg administration from a clogged thoroughfare for cars into a public space for pedestrians. New York Police Commissioner William Bratton was more blunt Thursday speaking to a local news station: “I’d prefer to just dig the whole damn thing up and put it back the way it was.”

That may sound like a rather drastic solution just to get rid of some mostly naked women begging for cash, but they’re stuck in a rather rough spot. It turns out that both the questions of topless women and panhandling have been taken up by New York before and each idea gets a big thumbs up. The only way there might be a loophole to get around this is if the women were considered to be engaged in acts of commerce rather than merely performance art or begging. (NY Times)

Some legal scholars say that ruling, in a case of seven women who purposely tested a topless ban in a Rochester park, seems to leave a door open for the city to arrest the desnudas for being topless if it could be proven they are engaged in a business. They note the United States Supreme Court has held that limits on nudity at erotic dance clubs are not violations of free speech.

“It sounds like it is commercial,” said Eugene Volokh, a First Amendment expert at U.C.L.A. School of Law. “The city could say if you are naked in a public place for a commercial purpose, we are going to apply the law to you.”

Perhaps we set the wheels in motion for this long ago when we decided that all the special snowflakes out there needed to not have their feelings hurt and the idea of “community standards” was tossed out the window in favor of letting everyone do whatever they like. I’ve lived in other places where panhandling was either not permitted or was restricted to certain zones because it was considered a public nuisance. It drove away business and/or tourism, frequently constituted harassment when the panhandlers got particularly aggressive, and just wasn’t what the locals wanted for their neighborhood.

Similarly with the topless performance aspect. This is another community standards question, though it runs into some sticky legal ground very quickly. That’s because (as noted in the WaPo article) there are no matching laws forbidding men from going shirtless. If they did, the Naked Cowboy would be out of business tomorrow. When I’m reminded of that situation I have to admit that the safe legal path will require treating everyone equally. But nobody ever goes after the Naked Cowboy since he keeps his private parts covered with his underwear and seems to be a popular attraction. But the fact is that he’s still just another panhandler when all is said and done.

So how do you solve this? Bulldozing the place probably isn’t going to solve anything because now that the desnudas know there is money to be made they’ll simply take their business down the street or over to Rockefeller Center. But telling women not to go around topless in the middle of the day is no longer supportable under the concept of community standards.