Before we begin a brief programing note.  Due to the Thanksgiving Holiday, there will be no episode next week.  We will return December First.

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Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Tagami v. City of Chicago, the Seventh Circuit’s decision regarding a challenge to Chicago’s public nudity law.

Sonoku Tagami participated in “GoTopless Day 2014,” an event sponsored by GoTopless, Inc., a nonprofit organization which advocates for a woman’s right to bare her breasts in public.  Tagami walked around the streets of Chicago wearing nothing above her waist but some opaque paint.  She was cited for violating a Chicago ordinance which prohibited public nudity, and in response filed a lawsuit, claiming the ordinance was unconstitutional.  She alleged that the ordinance banning the display of breasts in public violates the First Amendment’s guarantee of freedom of speech and, since it applies only to women, amounts to an impermissible sex-based classification in violation of the Equal Protection Clause of the Fourteenth Amendment.

It is undisputed that Chicago’s ordinance only bans the showing of female breasts, while allowing men to walk around without a shirt.  It also contains an exception for breastfeeding mothers, who are allowed to bear their breasts when necessary to feed.

After Tagami amended her complaint, the District Court granted the City’s motion to dismiss her complaint for failure to state a claim.  Tagami appealed to the Seventh Circuit, which ruled against her 2-1.

The Court began by examining Tagami’s First Amendment claim.  The majority started with what it called an obvious point – that Chicago’s ordinance targets conduct, not speech.  While the First Amendment does protect some expressive conduct, the Court acknowledged, this protection is limited to conduct which is “inherently expressive.”  In other words, the conduct itself must communicate a message without the need for additional speech.  Relying on earlier Supreme Court precedent, the majority held that nudity is not inherently expressive.

Tagami argued that her nudity was expressive speech, given its context, namely that it occurred as part of GoTopless Day.  Thus, while nudity may not be inherently expressive, in her case the context of her nudity made it so.  The majority rejected this argument because the public nudity itself did not communicate a message of protest.  The fact that other explanatory speech was necessary removed it from the protections of the First Amendment.

Furthermore, the majority held that, even if her speech was expressive, in the case where speech and nonspeech are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.  Here, the Court relied on the Supreme Court’s decision in a case called O’Brien, which dealt with the burning of draft cards.  The Supreme Court created a four part test: 1) the regulation is within the constitutional power of the government; 2) the regulation furthers an important or substantial governmental interest; 3) the governmental interest is unrelated to the suppression of free expression; and 4) the restriction on alleged First Amendment freedoms is no greater than essential to further the government’s interest.

Tagami only challenged the second prong of the test – challenging only the City’s justification for banning public nudity.  The City invoked its general interest in preserving health, safety, and traditional moral norms.  It is an attempt to protect unwilling members of the public, particularly children, from unwanted exposure to nudity.

Tagami argued that the City needed evidence to support this interest, and thus dismissal at the pleadings stage was inappropriate.  But the majority disagreed, pointing to another Supreme Court case from 1991 which had upheld a similar public-nudity ban without requiring any evidentiary showing.

Here, the Court defined the City’s interest as the societal disapproval of nudity in public places and among strangers – this interest, the court held, was not the means to some greater end, but an end in itself.  Chicago’s interest is the same as that upheld by the Supreme Court, thus the regulation survives the O’Brien test and is constitutional.

The Court then briefly turned to the Equal Protection claim.  The City argued that there was no sex-based classification, because the ordinance prohibits both men and women from exposing body parts that are conventionally considered to be intimate, erogenous, and private.  The Court rejected this argument, noting that the ordinance on its face plainly does impose different rules on men and women.  But it accepted the argument as a justification for the sex-based classification.

As the Court notes, the Equal Protection Clause has never been read to bad ALL sex-based classifications – those based on actual differences between men and women are permissible, and examined under a level of scrutiny similar to that exercised in O’Brien.  In other words, the City has to show that the classification serves an important governmental interest.  Because the two tests are not meaningfully different, the majority held that since the ordinance met the O’Brien test, it also met the test under the Fourteenth Amendment.

Judge Rovner dissented.  She began with the proposition that, like most First Amendment cases, this one involves speech which offends many, makes many others uncomfortable, and may seem trivial and unimportant to most.  In other words, it is speech which requires the most protection.

Here, Judge Rovner believes that dismissal at the pleadings stage was inappropriate.  She believes that Tagami’s conduct was sufficiently expressive on its own that it conveyed a particularized message and there was a high likelihood that those who viewed the conduct would understand its message.  She argues that an accompanying explanation does not transform expressive conduct into non-expressive conduct, otherwise clearly expressive conduct, such as wearing a black armband to protest war, would become non-expressive if someone shouted “No more war!” while wearing one.  Furthermore, Judge Rovner held, you cannot evaluate the expressive content of public nudity divorced from the context in which is occurs.

She argued that there could not be a clearer example of conduct as speech than here.  Here conduct had one purpose – to challenge the City ordinance banning public nudity.  Indeed, she notes that many of our seminal First Amendment cases involve clothing or the lack thereof, because we use our bodies for expressive purposes.  Thus, it is hard to imagine conduct more directly linked to a message then what Tagami did.

While Judge Rovner agrees that public nudity is not inherently expressive, she believes it goes too far to say, as the majority does, that nudity can NEVER be expressive.

She points out that, while in our society, female breasts have been sexualized in ways male breasts have not, there is nothing biological about that distinction.  The biological and functional difference between male and female breasts is not a sexual one, but rather has to do with feeding babies, which is exempted from the ordinance’s coverage.  Thus, the City’s justification boils down to its desire to perpetuate the stereotype that female breasts are primarily objects of sexual desire, while male breasts are not.  Traditionally, the Supreme Court has read the Equal Protection Clause to reject such stereotypes.

However, Judge Rovner is careful to point out that she is not making an argument on the merits.  Rather, she is merely dissenting from the dismissal of Tagami’s complaint at the pleading stage.  She believes that a full airing of the evidence is necessary to decide.

She similarly believes it was inappropriate to dismiss the Equal Protection Claim.  The principal respect in which male and female breasts are different is the role they play in feeding infants – and yet that is the one purpose for which a woman MAY expose her breasts under the ordinance.  Thus, it is only tradition and moral values that support the law, and in that case, the Court should look upon the justification with a skeptical eye.  Especially where, as here, it is not clear there is a broad consensus that baring the female breast is indecent.  Only three states treat it as such and the Model Penal Code only applies to genitalia.

Therefore, because it is possible that Tagami could prevail after a full hearing, Judge Rovner dissented from the dismissal of her case.

On this one, I have to disagree with the majority.  I think there are several problems with its reasoning, but first among them is that it does not appear to grapple with the fact that tradition and moral approbation are no longer valid governmental interests, as the Supreme Court made clear when it decided Lawrence v. Texas.  While I may agree that, based on Supreme Court precedent, nudity is not inherently expressive, I believe Judge Rovner is correct that this does not mean nudity is NEVER expressing a political belief, and therefore dismissal at this early phase was inappropriate.  There’s also the fact that Tagami wasn’t truly nude from the waist up.  As the facts show, she wore opaque paint over her nipples, so I question whether the ordinance was even properly applied to her.  But the broader point is, I think the Court is wrong on the merits of the O’Brien test, since I believe the City’s interest is invalid.  Thus, I think it’s a much closer case on the First Amendment question than the majority would indicate.

As to the Equal Protection Clause, I think the majority is clearly wrong.  While the two tests may be similar, they ask two different questions.  And here, it seems to me that the statute is clearly making a sex-based distinction for no good reason.  As Judge Rovner rightly points out, the only physical difference between male and female breasts are the latter’s ability to feed babies.  And the irony is, this is one situation in which a woman is welcome to bear her breasts in Chicago.  Certainly, the City has failed to show that the sexualization of the female breast is broad enough and a good enough reason to treat men and women differently.  If the City of Chicago is truly that upset about the baring of female breasts, there is a simple and legal way to achieve its goal – ban all people from exposing their nipples in public.  That would be a gender-neutral way to achieve this end.

And that’s our show.  Thanks so much for listening.  Links to the decision and other commentary are available in the shownotes to this episode at our website, summaryjudgmentpod.com.  You can reach out by e-mail at summaryjudgmentpod@gmail.com. You can like us on Facebook.  Or you can tweet thoughts and ideas to @podcastSJ.  Please remember to rate and review the podcast.  And if you like what you heard, please recommend the podcast to a friend!  See you next time for another Summary Judgment.

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