Topless in Times Square

Costumed women walk through Times Square, Wednesday, Sept. 2, 2015, in New York. Concerned that Times Square is becoming less
Costumed women walk through Times Square, Wednesday, Sept. 2, 2015, in New York. Concerned that Times Square is becoming less wholesome, the New York Police Department is assigning plainclothes officers to discourage aggressive panhandling in the tourist mecca that long ago rid itself of hookers and junkies. (AP Photo/Craig Ruttle)

Who would have thought that New York City's self-described "progressive" mayor, Bill de Blasio, would be taking cues from former president Richard M. Nixon's administration?

It has been deliciously fascinating these last few weeks to watch the de Blasio administration squirm over a relatively simple issue: the topless women in Times Square who paint their upper torsos to camouflage their breasts and then offer, for a fee, to pose for pictures with (presumably) tourists. These lightly clad small-business entrepreneurs join the ranks of the more costumed Disney, cartoon, and film characters plying their trade at the so-called crossroads of the world.

Progressivism, however, apparently cannot bring itself to accept libertarianism in any form. When the Uber car service began to challenge the monopoly of New York City's taxi licensing system (thereby threatening to deflate the six-figure or even seven-figure barrier-to-entry fee represented by the cost of a taxi medallion), Mayor de Blasio tried to cap the number of Uber vehicles on the city's streets. This idea went nowhere and was effectively challenged as protectionism for the taxi industry that had so generously supported the mayor's 2012 election campaign. The mayor decided to do nothing, other than to study the problem and report back.

Now we have these three-dimensional, topless trompe l'oeil artists posing live in Times Square, as opposed to displaying themselves on the two-dimensional pages of the annual Sports Illustrated swimsuit issue. The de Blasio administration cannot ban these women because topless nudity is apparently legal in New York City for men and women. Allowing only men only to go topless would be discrimination and immediately bring challenges under New York City's existing law and various provisions of the U.S. Constitution, such as the First Amendment's freedom-of-speech provision and the Fourteenth Amendment's guarantee of equal protection. Any "time, place, or manner" restrictions would also have to apply across the board equally to everyone.

Back to the progressive drawing board. One proposed solution was to rip up the existing pedestrian walkway that was established by the previous mayor and return Times Square to regular vehicular traffic. This costly, radical and ludicrous solution would shut down all of the area's small businesses -- Spidermen and Sponge Bob figures, topless women and food vendors alike.

It is worth noting that there is a legitimate concern that some of these Times Square "characters" have been overly aggressive in their solicitations, but this is a situation that can be handled relatively easily by increasing the number of police in the area who can monitor the hucksters. When I lived and worked in New York City for two years, I walked through this area every workday and cannot recall ever seeing such a problem.

So, with no apparent solution, Mayor de Blasio took the Uber approach: let's study the problem some more.

But wait a minute. What's going on here? There are so many double standards at play here that one easily loses count. Does anyone remember the 2010 installation exhibit at New York City's ultra posh Museum of Modern Art, just 10 blocks or so from Times Square? This show, by artist Marina Abramovic, featured live, fully nude -- not just topless -- male and female models. One part of this exhibit invited museum-goers to walk between a naked man and a naked woman who stood facing each other across a doorway. Was there an uproar over this display? No.

I missed this show, unfortunately. As with the case of most installation art, however, I failed to understand how it constitutes art, but that's just the bias of someone whose hobby is representational painting. Having said that, beauty is, of course, often in the trompe l'oeil of the beholder, and I would no more have banned Ms. Abramovic's show than the Times Square exhibitionists.

There is, of course, a slight difference here worth mentioning: Times Square is a public space, while MOMA will cost you a $25 entry fee. But, as we lawyers like to say, that's a distinction without a difference. If the concern is exposing children to nudity, then wasn't there a problem with the MOMA show where a child could accidentally find herself face-to-face with adult nudity? At least the Time Square women are somewhat artfully disguised. Or maybe there's a double standard that turns on matters of class and privilege, whereby we treat the working-class women on Times Square differently than the nudity-for-a-fee show inside MOMA?

Why does Mayor de Blasio apparently have it in for these women? He reminds me of Richard Nixon's notorious Attorney General, John Mitchell (who did prison time for his Watergate antics), who also had it in for another troublesome woman, Washington Post publisher Katharine Graham. Mitchell was extremely unhappy with Mrs. Graham's newspaper and its ongoing, relentless investigation of the 1972 Watergate Hotel break-in. Mitchell issued a famous threat against Mrs. Graham and what might happen to her if she persisted. For those readers too young to remember Watergate, just type these five words into the search engine of your choice: "Richard Nixon John Mitchell Wringer".

I eagerly await the results of Mayor de Blasio's study group. But there's a much simpler solution to this issue. Once autumn arrives and the temperature falls, the Times Square topless issue will take care of itself.

Until then, c'mon, Mayor, chill out!

Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H. W. Bush White House. He was president of the French-American Foundation - United States from 2012-2014 and president of the Committee for Economic Development from 1997-2012.