Justices strip out antiwar nudist’s bid for legal fees

Times Staff Writer

The Supreme Court’s first ruling on an Iraq war protest is not likely to be remembered as a landmark in the law. In a 9-0 ruling, the justices rejected a claim for legal fees filed on behalf of a Florida nudist who wanted to form a peace symbol out of naked bodies on a state beach.

Toni Anne Wyner’s planned demonstration ran afoul of the state’s Bathing Suit Rule, which, as its name suggests, requires beachgoers to cover up. In February 2003, she went to court to challenge this rule as a violation of her 1st Amendment right to free expression. In the past, the Supreme Court has said that nudity and nude dancing can be a form of expressive conduct, though it can be regulated.

At first, a judge saw merit to her complaint and allowed the nude protest to take place -- but behind a screen, to shield other beach patrons at John D. MacArthur Beach State Park in Palm Beach County.

“The value of freedom is found not only in the larger issues of life but also in the fanciful and strange,” said U.S. District Judge Donald Middlebrooks.


He continued: “Protesting a potential war through naked protest seems a bit quixotic, but it is also part of the freedom that both those supporting the war and those who oppose it seek to protect.”

After forming their peace symbol behind the screen, the nudists went into the water naked.

When Wyner went back to court seeking a permanent order allowing such protests, the judge refused and ruled for the state. However, he said that the civil liberties lawyers who represented Wyner were entitled to be paid because they had won at least one round of the litigation.

The Supreme Court reversed that decision Monday in Sole vs. Wyner. Federal law entitles the “prevailing party” in a civil rights or civil liberties case to obtain legal fees from the government. “Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral,” Justice Ruth Bader Ginsburg wrote for the court. A plaintiff who wins a preliminary injunction, then loses on the merits, wins a battle but loses a war, Ginsburg wrote.


Randall C. Marshall, legal director for the American Civil Liberties Union of Florida, said he was disappointed in the ruling. “We believed her 1st Amendment rights were fully vindicated in 2003 when she put together the nude protest on the beach on the eve of the war,” he said.

Despite the legal setback, Wyner has persevered, Marshall said. “In 2007, they produced another nude peace symbol on the beach. And state officials did not interfere.”