Is it Legal to be Topless in NY?

Interviewer 1: It’s 1-800-LAW-1010. From Martin Harding and Mazzotti. We normally talk to Paul and then sometimes Chaz. Maybe this guy’s a specialist in toplessness. I want to welcome him to the show for the very first time, attorney Ben Barry. Mr. Barry, thanks for coming on.

Mr. Barry: I am a specialist in this topic, so you’ve got the right guy.

Interviewer 1: Is Chaz on the paternity leave?

Mr. Barry: He is. He’s just had his third child, and a healthy baby boy. So we’re all rooting for Chaz from afar today.

Interviewer 1: He’s got three boys.

Interviewer 2: Amazing.

Interviewer 1: That’s incredible.

Interviewer 2: Amazing.

Interviewer 1: All right. Thanks.

Interviewer 2: So, Ben, the story kind of came out on, I think, Sunday or Monday, Sunday. Channel 10 posted it on Facebook and they blocked out the photos and everything, but something struck me when I read this story. It’s legal in New York. They weren’t arrested. It’s legal in New York. My question…

Interviewer 1: It’s legal to be topless.

Interviewer 2: To be topless in New York.

Interviewer 1: To be topless in New York, yeah.

Interviewer 2: But, I mean, if they were in the track or if they were, you know, in another place of business of some sort, could I literally go anywhere topless if I were a female?

Mr. Barry: No, it doesn’t apply necessarily to private places, but the law in New York City under Section 245.01 prevents people or is intended to prevent people from toplessness, particularly women, in public places. But there have been court cases that have developed that law to basically say the only time that women are prevented from going topless in public places are if they’re topless for a commercial reason or if it’s lewd, if it’s sexually suggestive in some way.

The statute, as it’s written, treats men and women differently. Men can walk around with their shirt off in most places. You know, there are stores that say you can’t come in here no shirt, no shoes, no service. And that’s okay. It’s a private place of business. They have the ability to keep people out if they want to based on certain criteria.

Interviewer 1: You said it too, way back. You said way back you said that the law kind of was intended for women. There’s no way, in this country, that we can make a law intended for any gender, right?

Mr. Barry: That’s correct. Well, you can make laws that are specifically catered to genders, but there has to be a substantial government interest at risk. And the law has to be specifically catered to try to address that risk. So there is a much higher standard when the government says there’s a difference between men and women, and we’re gonna prohibit women or men from doing one particular thing that the other sex can do. So if the government is going to endeavor in writing those types of laws, they have to be very careful with it. It can’t just be a sort of a blanket prohibition that was…

Interviewer 2: It’s got..

Mr. Barry: …enacted by the New York state legislature with 25…

Interviewer 2: If a guy can do it, a woman should be able to do it, is how I interpret where…

Mr. Barry: Absolutely.

Interviewer 2: …we are these days, but…

Interviewer 1: All right, so bottom line me, Ben. Empire State Plaza “Alive at Five”, Thursday night, my wife goes and watches the performance topless. Is that legal or not?

Mr. Barry: Legal.

Interviewer 1: Wow.

Interviewer 2: Let’s do that. Can we do that?

Interviewer 1: I’ll have to talk to her about that.

Mr. Barry: What time are you guys gonna be there?

Interviewer 1: I’m gonna talk to her.

Interviewer 2: All right.

Interviewer 1: All right, so why is it story then. Why is it in the news?

Mr. Barry: I think it’s in the news because…

Interviewer 2: Breast cancer awareness.

Mr. Barry: …women’s breasts, yeah, I mean there’s breast cancer awareness. There’s a lot of groups raising awareness. There’s a lot of attention that, probably rightfully so, should be directed at women’s breasts and health awareness issues. But also there is other trends and movements that are overlaying what ultimately was the court’s decision in 1992, and that’s, you know, normalization of breasts in public..

Interviewer 2: I have dream, you guys. I have a dream where men and women, young and old can all go topless and eventually all go bottomless. Did you hear about the guy on the plane the other day?

Interviewer 1: Did he go bottomless?

Interviewer 2: Took his clothes off…

Interviewer 1: That’s crazy.

Interviewer 2: …like Richard Patrick…

Interviewer 1: That’s crazy.

Interviewer 2: …from Filter. Just got naked and went and talked to a stewardess.

Mr. Barry: [inaudible 00:04:05]

Interviewer 1: Attorney Ben Barry from Martin Harding and Mazzotti clearing it up. So now we know the laws, and there is no law.

Interviewer 2: Yeah, right.

Interviewer 1: And we appreciate it.

Interviewer 2: Exactly, so there you go. Topless away, everybody.

Interviewer 1: Thanks, Ben.

Interviewer 2: Thanks, Ben.

Mr. Barry: Thank you. Thank you, guys.

Interviewer 2: Good talking to you, man.

Mr. Barry: Thank you, guys.

Interviewer 2: Nice to meet you.

Mr. Barry: Bye bye.

Interviewer 1: See you.

Interviewer 2: It’s 1-800-LAW-1010,

Announcer: Quinn and Cantara. Mornings on PIX 106.