Public nudity and the right to freedom of expression: Balancing competing interests

With little case law concerning nudity and the right to freedom of expression, this paper aims to uncover the appropriate frameworks to be used to determine the following questions: (a) when is public nudity “expression” for the purposes of s 14 of the New Zealand Bill of Rights Act 1990, and (b) in what circumstances involving “expressive” public nudity would it be reasonable and demonstrably justifiable to limit the right to freedom of expression using s 4(1)(a), as per s 5 of the Bill of Rights Act? As regards the first of these questions, this paper critiques the current test in use in New Zealand for determining whether conduct is expression – the test developed by the Canadian Supreme Court in Irwin Toy Ltd v Attorney-general (Quebec) – and advocates for the adoption of a purposive approach to determining the scope of the right to freedom of expression. As for the second of these questions, this paper advocates for the adoption of “the modified Hansen sequence” proposed by Professor Claudia Geiringer. This paper then uses recent examples of public nudity involving naturists and protestors to test these frameworks and to illustrate how they would operate in practice.