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AFA-Michigan to SVSU President Gilbertson re: MI Ct of Appeals Ruling on Indecent Exposure

April 21, 2007

Dear AFA-Michigan supporter,

Below is a copy of my message to Saginaw Valley State University President Eric Gilbertson. Please join us in praying that it will have some positive effect toward ending the use of your family’s tax dollars to pay for this grossly offensive and immoral presentation. Thanks, as always, for your prayers and support!

Gary Signature
Gary Glenn, President
American Family Association of Michigan

Dear President Gilbertson,

Regarding Saginaw Valley State University’s presentation of the play “Angels in America,” including full-frontal male nudity in a public venue: if your legal counsel has not already done so, we urge you to examine the Michigan Court of Appeals’ unanimous 2005 rejection of the First Amendment “artistic expression” defense to a violation of Michigan’s indecent exposure law.

See People v. Huffman, Michigan Court of Appeals, May 10, 2005:

We find the excerpts below particularly compelling and applicable to SVSU’s knowing and wilful presentation of full-frontal male nudity in violation of the Michigan Penal Code, Act 328 of 1931, Section 750.335a, Indecent Exposure, which states: “A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.”

Given the criminal penalties provided for violations of this statute, we trust you have fully advised the SVSU faculty member directing the play and the student actors themselves of the potential jeopardy in which they place themselves by knowingly violating provisions of the Michigan Penal Code.

We strongly agree with the Michigan Court of Appeals finding that “public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. …This and other public indecency statutes were designed to protect morals and public order.”

A state institution that receives millions of dollars in public revenue, then uses those tax dollars to violate and undermine laws “designed to protect morals and public order,” must be held accountable, both legally and in terms of its continued receipt of taxpayers’ dollars. If SVSU refuses to obey the laws duly enacted by the Legislature, signed into law by the governor, and upheld by the courts, on what legitimate basis can you ask that same Legislature to continue to fund your activities as before?

This message is being copied to the Attorney General, local law enforcement agencies, members of the Legislature (including members of the House and Senate Higher Education Appropriations subcommittees), and the news media.


Gary Glenn, President
American Family Association of Michigan

The People v. Huffman
Michigan Court of Appeals
May 10, 2005

Justice Richard A. Bandstra
Justice Bill Schuette
Justice E. Thomas Fitzgerald

IV. Does the Conviction Violate Defendant’s First Amendment Right to Free Speech?
Defendant argues that his First Amendment right to free speech was violated by his conviction under the indecent exposure statute.

…In O’Brien, the Supreme Court…held that “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms” applicable to the speech elements. Id. The O’Brien Court announced a four-part test for determining whether a governmental regulation is sufficiently justified in this context: a court must examine “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377.

…With respect to the first two parts of the O’Brien analysis, the Barnes plurality held that “[t]he public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests.” Id. at 567. The justices noted that “the statute’s purpose of protecting societal order and morality is clear” and that “[p]ublic indecency statutes of this sort are of ancient origin and presently exist in at least 47 States.” Id. at 568. Further, “[p]ublic indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.” Id. “This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation.” Id. at 569.

…Adopting the analysis of the Supreme Court as equally applicable here, we conclude that Michigan’s indecent exposure statute is clearly within the constitutional power of the state and that it furthers substantial governmental interests. With respect to the third part of the O’Brien test, the Barnes plurality held that the governmental interest in protecting morals and public order through the prohibition of public nudity “is unrelated to the suppression of free expression.” Id. at 570.

…The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the State still seeks to prevent it. Public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. [Id. at 570-571.]

Similarly, the “perceived evil” that Michigan seeks to address through its indecent exposure statute is not the communication of some message associated with indecent exposure; it is the indecent exposure itself. …Thus, Michigan’s indecent exposure statute does not prevent the conveyance of any message. It merely requires that messages must be conveyed within minimal bounds of proscribed conduct having nothing to do with expression.

Finally, the Barnes plurality considered the fourth part of the O’Brien test: The fourth part of the O’Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself.

…Again, we find this analysis applicable to the Michigan indecent exposure statute, and conclude that the incidental restriction on defendant’s First Amendment freedom is no greater than is essential to the furtherance of the governmental interest in promoting public morality by prohibiting public nudity.

…we conclude that the promotion of public morality through the prohibition of indecent exposure is a sufficient governmental interest to satisfy the second part of the O’Brien test.
“The traditional power of government to foster good morals (bonos mores), and the acceptability of the traditional judgment…that nude public dancing itself is immoral, have not been repealed by the First Amendment.” Erie, supra at 310 (Scalia, J., concurring) (emphasis in original). The same analysis applies in this indecent exposure case.

…In Vronko, a panel of our Court considered whether the language “open or indecent exposure” in MCL 750.335a was unconstitutionally vague and determined that it was not. The panel noted that “[a] statute is not vague if the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises, or
their generally accepted meaning.” Vronko, supra at 653. The panel noted that the Michigan Supreme Court has reasoned that the “‘well settled and generally known significance of the phrase “indecent and obscene exposure of the person” is the exhibition of those private parts of the person which instinctive modesty, human decency or natural self-respect requires shall be customarily kept covered in the presence of others.'”

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