Nature of the Case
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Facts
P sought a declaration of unconstitutionality of a regulation of the National Park Service imposing a total ban on nude bathing. For some forty or fifty years, a spot, hidden behind some of the highest sand dunes on the Cape, had been used by individuals, couples, and small groups for skinny dipping. The local town nor the Commonwealth of Massachusetts sought to suppress this activity. Nor, after the creation of the Seashore in 1959, did the National Park Service. By 1972 Brush Hollow attracted as many as 150 nude bathers in a day. In the summer of 1974, the average daily count of nude bathers was over 300, on weekends rising to 600, and attaining a peak of over 1200 on one day in August. Brush Hollow was classified as a Class III conservation area in which some recreational use was contemplated. The beach was equipped with no organized facilities or services. The Park Service adopted 36 C.F.R. § 7.67(g), which bars public nude bathing within the Seashore to all persons over ten years of age. P sued, but the district court held that the regulation withstood constitutional challenge, the conditions prompting the regulation outweighing the right at issue. Ps claim that lesser restrictive alternatives were available. The experiences of the summer of 1974 where far greater numbers of nude bathers than ever before caused record traffic congestion, litter, and trespassing. Ps claim that no attempt was made to enforce littering or trespass regulations; parking restrictions were feebly enforced; no attempt was made to limit access to beaches via stickers; no regulations forbad walking on dunes and vegetation; and signs announcing a nude beach were not utilized. Ps claim that it would cost the Park Service no more to limit access than to impose a total ban on nude bathing. Ps claim their long-tolerated practice of nude bathing, acquired a substantively protected constitutional right.
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