A time may come when women can successfully make the case that as long as men are allowed to bare their chests in public (man-boobs and all), then in the name of gender equality women should be allowed to as well. But that time is not now, and that place is not Illinois.
The U.S. Court of Appeals for the Seventh Circuit on November 8 upheld the city of Chicago’s anti-public nudity ordinance, which, in addition to prohibiting the public exposure of male and female below-the-waist naughty parts, requires the female breast to be covered from the top of the areola on downward, on any public beach, park, or public way. Fines for violation are $100-$500. Breast-feeding is exempted.
Sonoku Tagami and her group, GoTopless Inc., which advocates for women’s right to bare their breasts in public, staged a “Go Topless Day” protest in 2014. Tagami, who had covered her bare breasts with opaque paint, was fined for violating the nudity ordinance. She challenged the citation in federal court as a violation of her free speech rights, and the ordinance on equal protection grounds as unconstitutional gender-based discrimination. Persons challenging local laws as violating their rights under the U.S. Constitution usually must bring their case in federal court.
District Court Judge Sharon Johnson Coleman granted the city’s motion to dismiss both claims, and Tagami appealed.
First, it’s important to understand what is and is not considered “free speech” under the First Amendment. Many mistakenly believe it gives one the right to say or do literally anything in a public place in the name of expression. The right is broad but not absolute, and the government may reasonably restrict it to protect public order and safety. GoTopless Inc. unquestionably had the right to protest the ordinance, but probably not by violating the ordinance they were protesting.
When speech is in the form of expressive conduct, that conduct may be regulated as long as the government’s purpose is not purely to suppress the speaker’s message and the regulation goes no further than necessary to carry out the purpose. Conduct has long been afforded less First Amendment protection by courts than plain speech because someone could try to justify almost any kind of public behavior as an expression of some idea and get away with it.
Writing for the three-judge Seventh Circuit panel, Judge Diane Sykes explained that the First Amendment is more likely to protect conduct that is inherently expressive, or which leaves no question in the viewer’s mind as to the message being conveyed. A good example is the constitutionally protected act of burning the American flag, which needs no accompanying explanation as to what the burner is trying to say.
Here, as Sykes noted, public nudity could be interpreted different ways by a viewer, not necessarily as a political protest: “Being in a state of nudity is not an inherently expressive condition.” The fact that Tagami needed signs and slogans to accompany and explain her bare-breastedness was proof the conduct was not inherently expressive.
“This ordinance regulates conduct, not speech,” the court said, citing U.S. Supreme Court (SCOTUS) precedent that longstanding local ordinances banning public nudity are valid exercises of the state’s power to protect the health, safety, and morals of the public and do not infringe on speech rights. The state has an important interest in maintaining public order and protecting members of the public, including children, from unwillingly being exposed to the nudity of others. (Such laws, according to SCOTUS, “reflect societal moral disapproval of people appearing in the nude among strangers in public places.”)
“Chicago’s ordinance has existed in one form or another for decades. Like other laws of this type, its essential purposes—promoting traditional moral norms and public order—are both self-evident and important enough to survive scrutiny.”
It is also this state “police” power that allows it to impose differential treatment on female versus male toplessness.
A Fourteenth Amendment equal protection test is somewhat similar to a First Amendment analysis. To justify treating the sexes differently, the government must have an important interest to protect that is not related purely to gender stereotypes or the traditional roles of men and women.
The panel rejected the city’s argument that the ordinance does not actually discriminate because it prohibits exposure of both male and female “private” parts (the city had argued “the list of intimate body parts is longer for women than men, but that’s wholly attributable to the basic physiological differences between the sexes”).
But even though the ordinance plainly treats the sexes differently on its face, the court found sufficient justification. “Physical differences between men and women … are enduring: The two sexes are not fungible” (quoting SCOTUS again).
Because the analysis is not meaningfully different, the ordinance survives an equal-protection challenge for the same reasons it does not infringe on constitutionally protected speech. Accordingly, the panel affirmed District Judge Coleman’s dismissal.
There was an interesting dissent from Judge Ilana Rovner, who like Sykes was a Republican appointee (and the first woman on the Seventh Circuit). She wrote that whatever the merits of her claims, Tagami should at least have the opportunity to argue her case before a factfinder in court without having her claims dismissed on their face, and the city should have to present evidence to justify its rules.
“As in many First Amendment cases, the speech at issue here is that which offends many, makes many others uncomfortable, and may seem trivial and unimportant to most,” Rovner wrote. “The First Amendment protects not just the speech which a majority of people find persuasive and worthwhile. And when presented with a free speech claim, we must take care not to allow our own personal assessment of the worth of the speech to dictate whether the claim should be dismissed.”
Rovner stressed that her objection was strictly to the prematurity of the court’s conclusion at the motion-to-dismiss stage.
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