APPELLANT'S MOTION FOR RECONSIDERATION. Appellant, Lorien Bourne, then a student at Bowling Greene State University,

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1 IN THE SUPREME COURT OF OHIO CITY OF BOWLING GREEN, ` Supreme Court Case No.: Appellee, vs. LORIEN D. BOURNE, Appellee. On Appeal from the Wood County Court of Appeals, Sixth Appellate District Court of Appeals Case No. WD APPELLANT'S MOTION FOR RECONSIDERATION JEFFREY M. GAMSO ( ) Legal Director American Civil Liberties Union of Ohio Foundation, Inc. Max Wohl Civil Liberties Center 4506 Chester Avenue Cleveland, Ohio Phone: (216) Fax: (216) jmgamsoqacluohio.org ESTEBAN R. CALLEJAS ( ) Bowling Green Prosecutor 711 South Dunbridge Road Bowling Green, Ohio Phone: (419) Fax: (419) COUNSEL FOR APPELLEE, CITY OF BOWLING GREEN APP, CLERK OF COURT SUPREME COURl OF 0H10

2 APPELLANT'S MOTION FOR RECONSIDERATION Appellant, Lorien Bourne, then a student at Bowling Greene State University, was angered and offended by different legal standards of acceptable behavior for men and women. She and some friends found a particular focus of their attention in the disparate treatment of the topless. While women could be publicly topless without legal risk only in venues where their breasts would serve as entertainment for men, men could be publicly topless pretty much anywhere. To call attention to this inequality, Ms. Bourne and her allies formed the "Titty Committee," and invited the public to attend a "Solidarity Potluck" in City Park. At the potluck, and as a form or political speech, Ms. Bourne and two other women took off their shirts. They were cited and Ms. Bourne was prosecuted for and convicted of disorderly conduct "because her bare breasts were 'physically offensive' to other park guests." Bowling Green v. Bourne, 2007-Ohio-5748, 14. No man would have been prosecuted for that action. No man could have been convicted for it. In her Memorandum in Support of Jurisdiction, Ms. Bourne asked this Court to address four propositions of law: Proposition of Law No. 1: A woman's right to the equal protection of the law is violated when she is arrested and prosecuted solely because female anatomy is deemed "physically offensive." Proposition of Law No. 2: When a facially neutral law is applied in such a way that women who act in a certain way are prosecuted under it but men, who act in precisely the same way are not, the selective enforcement violates the 2

3 women's right to equal protection of the law. Proposition of Law No. 3: Expressive conduct that is designed and explained as a protest against social norms is a form of protected free speech that may not be deemed beyond Constitutional protection merely because social norms militate against it. Proposition of Law No. 4: Political protest is a"lawful and reasonable purpose" which precludes prosecution for disorderly conduct for the creation of "a condition that is physically offensive." In various ways, these propositions directly address two salient concerns: 1. When women are prosecuted but men are not though the behavior of both is identical, are the rights to equal protection of the law and substantive due process violated? 2. May the government, consistent with the right of free speech, prosecute a woman for the "physically offensive" act of revealing her breasts as a means of political speech and for a purpose neither unlawful nor unreasonable? But the scope of this case is, ultimately, broader even than those concerns suggest. For if exposure of some human bodies but not others can be treated as criminal because they are "offensive," there is really no principled stopping place. Some may be offended by those with physical disabilities. Are the wheelchairbound to be forced to stay indoors or suffer prosecution? Must those who bear scars from military service keep them covered at all times when out in public? What of the elderly? People of,color? Jews? Yes, women are physically different than men. Yes, the sight of a woman's 3

4 breasts can be provocative and arousing. But we have laws against public indecency.' Had Ms. Bourne been exposing herself for sexual purposes in a public park, she could have been cited for violating those laws. That she was not merely emphasizes what the municipal court and the court of appeals recognized: her purpose was political. Of course, not all political acts are protected against prosecution. Terrorism is, in a very real sense, political.2 There is no question that acts of terrorism can be prosecuted. Less extreme acts, too, even when politically motivated, can be prosecuted. Thus, regardless of the underlying political motivation, one cannot commit arson, putting the public safety at risk.3 But if arson is criminal even while ceremonial burning is protected speech, so public indecency is criminai while political nudity is protected speech - and is specifically protected under the law which Ms. Bourne was convicted of violating. Ms. Bourne's may seem a small case, but the issues it raises are matters of great import. And, frankly, of great interest. She urges this Court to reconsider its decision of March 26, 2008, accept jurisdiction, reverse the decision of the court of appeals, and adopt her propositions of law. 'See R.C ZSee, e.g., R.C (A)(2) & (3). 4

5 CONCLUSION For these reasons, as well as those advanced in her Memorandum in Support of Jurisdiction and in the amicus memorandum filed by the Naturist Action Committee, this Court should accept jurisdiction, reverse the decision of the court of appeals, adopt appellant's propositions of law. FFREY M. GAMSO ( ) Legal Director American Civil Liberties Union of Ohio Foundation, Inc. Max Wohl Civil Liberties Center 4506 Chester Avenue Cleveland, Ohio Phone: (216) Fax: (216) See, Bellecourt v. Cleveland, 104 Ohio St.3d 439, 2004-Ohio

6 PROOF OF SERVICE This is to certify that a copy of the foregoing Motion for Reconsideration was sent by regular U.S. Mail, postage prepaid, to the office of the Bowling Green Prosecutor, 711 South Dunbridge Road, Bowling Green, Ohio 43402, counsel for appellee, this 2i7Lday of April, Respectfully submitted, JErFREY M. GAMSO ( ) Legal Director American Civil Liberties Union of Ohio Foundation, Inc. Max VNohl Civil Liberties Center 4506 Chester Avenue Cleveland, Ohio Phone: (216) Fax: (216) jmgamso@acluohio.org 6