Op-Ed: 7th Circuit Gets It Wrong In Topless Protester Case

CHICAGO, Ill.—Among the women's rights that are under threat in the U.S. is one that many don't consider to be a feminist issue: The right to go topless in public. Fact is, not everyone is as sensitive about bare skin as conservatives would like us to believe, and several women, including Bruce Willis' daughter Scout, have made it a point to walk city streets wearing nothing above the waist, in some cases because it's already legal in that particular city, and in other cases, to challenge the anti-topless laws in the city where they're staging their topless protest.

Which brings us to the case of Sonoku Tagami, who spent "GoTopless Day 2014… walking around the streets of Chicago naked from the waist up, though wearing 'opaque' body paint on her bare breasts," according to the opinion issued earlier this month by the Seventh Circuit U.S. Court of Appeals in the lawsuit Tagami filed after having been found guilty of violating the city's anti-public-nudity law.

Trouble is, that court's analysis is just plain wrong.

The opinion was delivered by Judge Diane Sykes, and joined by Judge Frank Easterbrook—a surprising turn of events because Easterbrook has ruled favorably on several adult bookstore cases that have come before him, and has previously appeared to be a champion of First Amendment rights. Dissenting from the majority opinion was Judge Ilana Rovner, who disagreed with her fellow jurists on nearly every major point.

According to the opinion, Tagami "contends that banning women from exposing their breasts in public violates the First Amendment's guarantee of freedom of speech and amounts to an impermissible sex-based classification in violation of the Fourteenth Amendment's Equal Protection Clause." Both of those contentions would seem inarguable—but that didn't stop Sykes and Easterbrook.

"Taking the First Amendment claim first, we begin with an obvious point: Chicago’s public-nudity ordinance regulates conduct, not speech," Sykes writes. "Some forms of expressive conduct get First Amendment protection, but this principle extends only to conduct that is 'inherently expressive.'"

Of course, Tagami could have expressed her support of GoTopless Day fully clothed and carrying a protest sign—but that would hardly have been the best demonstraton of her support of the cause. And the fact that she went topless on GoTopless Day would suggest that her action was "inherently expressive."

"To fall within the scope of this doctrine, the conduct in question must comprehensively communicate its own message without additional speech," Sykes continues. "Put slightly differently, the conduct itself must convey a message that can be readily 'understood by those who view[] it.'" [Citations removed here and below]

Hmmm… someone protests the law against going topless by going topless on GoTopless Day! Yeah, so easy to mistake that message!

And believe it or not, the court actually recognized that argument—and dismissed it.

"She alleged in her amended complaint that she bared her breasts in public places around Chicago as part of GoTopless Day, an event intended to 'protest ... laws that prevent[] women from appearing bare-chested in public,' which the group and its supporters consider archaic," Sykes rightly notes. However, she continues, "Whatever her subjective intent, Tagami’s public nudity did not itself communicate a message of political protest. Indeed, her amended complaint drives this point home by alleging that she appeared topless in public 'while expressing [her] views that women, like men, should not be prohibited from appearing bare-chested in public.' The presence of additional explanatory speech 'is strong evidence that the conduct ... is not so inherently expressive that it warrants [First Amendment] protection.'"

YEAH! Because it's not as if anyone ever used multimedia to drive home a point before!

But no, according to Sykes, the fact that Tagami went topless on GoTopless Day wasn't something that "onlookers would have readily understood … was actually a political protest against the City’s public-indecency ordinance… Even if we assume for the sake of argument that Tagami's nudity was communicative enough to warrant some degree of First Amendment protection, the district judge was right to dismiss this claim. '[W]hen speech and nonspeech elements 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.'"

Ah, the "sufficiently important governmental interest in regulating the nonspeech element." Translation: There's some "important governmental interest" in keeping women's tits hidden. And what is that "interest" exactly? Well, after quoting the four criteria for "surviv[ing] First Amendment scrutiny" under the Supreme Court four-prong test in U.S. v. O'Brien, the court claims that "To defend the ordinance against this facial challenge, the City invokes its general interest in preserving health, safety, and traditional moral norms."

Ah; so after laughably claiming that the city's "health" and "safety" are somehow impacted by bare tits, we get to the real nub of the court's concern: "traditional moral norms." As if anyone's "moral" beliefs will be affected by seeing someone topless! (And if they were, how strong could those "moral" beliefs be?)

"More particularly," the opinion continues, "the City argues that the ordinance protects unwilling members of the public—especially children—from unwanted exposure to nudity." Ah, "unwanted." Well, surely that's enough to fine someone $100 for exposing her tits—but not his tits, of course! Certainly, there are some kids who've never seen a bare tit before—but what harm would it do them if they did? Tits are natural, tits provide sustenance for infants, and tits are occasionally fun for adults—and why should the city cater to a parent who is so twisted (inevitably by their religion) as to have a problem with their kid seeing a bare tit?

Being non-stupid, Tagami (and/or her attorney) actually asked the city to "produce evidence to support its justification for this law… More specifically, she argues that the City has the burden to show, with evidence, that the ordinance is justified as a means to prevent the harmful secondary effects of public displays of nudity." Seems reasonable, right? Not for these two federal judges who, rather than using their own common sense, relied on Supreme Court precedent from both O'Brien and the famous 1991 case of Barnes v. Glen Theater to justify their anti-tit prejudice:

"[T]he statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law ... . Public nudity was considered an act malum in se [Ed: "inherently evil"]. Public indecency statutes ... reflect moral disapproval of people appearing in the nude among strangers in public places… This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation."

Apparently these judges haven't noticed that society has changed a bit since 1968 (O'Brien) and 1991 (Barnes). See, there's this thing called the internet that all the kids are using nowadays, where a bare tit is about two mouse-clicks away, not to mention cable TV which is in one hell (sorry, heck) of a lot of modern households, where full nudity, not just toplessness, is well on display. And again, there are cities like New York where going topless in public is not only legal, it barely causes pedestrians to bat an eye—and how is Chicago any less (well, much less) cosmopolitan than the Big Apple?

But no; 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 under the O’Brien test." (Sadly, federal judges who buy this "logic" are being confirmed almost weekly by Congress under Republican domination—and Trump has plans to double or triple their number while he's in office.)

And remember those man-tits that aren't illegal to show in public? The majority thinks it has a rationale for that as well.

"Moving now to the equal-protection claim, the City advances a threshold argument that its public-nudity ordinance does not actually classify by sex, so the Equal Protection Clause is not implicated at all," the opinion states—and then actually points out that the city is wrong about that: "As the City sees it, the ordinance treats men and women alike by equally prohibiting the public exposure of the male and female body parts that are conventionally considered to be intimate, erogenous, and private. 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." [Emphasis added.]

(Somehow, we can't help but deduce from that, that it'd be okay for women to walk around topless if they looked a little butch and their tits were small enough!)

"This strikes us as a justification for this classification rather than an argument that no sex-based classification is at work here at all," the court rightly recognizes. "On its face, the ordinance plainly does impose different rules for women and men. It prohibits public exposure of 'the breast at or below the upper edge of the areola thereof of any female person.'" Y'know, just because something is part of the city's criminal code doesn't mean it's either rational or right, and any rational court could have pointed that out.

But no: "Still, a law that classifies on the basis of sex is compatible with the Equal Protection Clause if the classification serves important governmental objectives and the 'discriminatory means employed are substantially related to the achievement of those objectives,'" the opinion claims, citing the 1996 case of United States v. Virginia—a case about whether a sex-segregated military academy needed to admit women! (Surprise: the Supreme Court said it did!)

"This intermediate level of judicial scrutiny recognizes that sex 'has never been rejected as an impermissible classification in all instances'," the majority continued, citing Rostker v. Goldberg, a 1981 case about whether women could be required to register for the draft! (In a 6-3 decision, the Supremes said they couldn't, supposedly because women "were not 'similarly situated' for the purposes of draft registration… because of combat restrictions on women." And guess what? Now women can serve in combat! How the female of the species has evolved in just 36 years!)

Perhaps the court will one day explain how allowing women into a military academy and refusing to allow them to be drafted has anything to do with going topless in public… but not today (or rather, November 8, when the decision came down).

In her dissent, Judge Rovner gets right to the essential merits of the case.

"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," Judge Rovner's first paragraph begins. "The First Amendment protects not just the speech which a majority of people find persuasive and worthwhile, but to the contrary, its protections are most essential when the speech is that with which most take offense. This is the caveat that must be emphasized beyond all else in this case."

Since the case before the appeals court was the trial court's summary dismissal of Tagami's lawsuit against the Chicago ordinance, Judge Rovner notes that, "We must always be mindful that when we dismiss a case on the pleadings, we deprive the parties of their day in court to marshal evidence to make the most persuasive argument for their rights. 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." Translation: Hey, my prejudiced colleagues, maybe you could keep your religious moral views in check when consider a case of free speech rights?

Rovner's dissent adds another fact that the majority ignored: "she [Tagami] and her group explained their conduct, passed out fliers and otherwise voiced the purpose of their protest." Oh; so with the fliers, at least, contrary to the majority's claim, "onlookers would have readily understood [that the toplessness] was actually a political protest against the City’s public-indecency ordinance"!

But Rovner goes even further: Conduct is sufficiently expressive when the intent of it is to convey a particularized message and the likelihood is great that those who view the conduct will understand the message. ... the fact that Tagami included some explanation with her conduct does not necessitate a finding that her message would not have been understood otherwise. Accompanying explanations do not turn expressive conduct into non-expressive conduct. Otherwise wearing a black armband would constitute expressive conduct, but wearing an armband and shouting 'No more war!' would not. ... Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to earn money, streaking across a football field to appear on television, or even nursing a baby (conduct that is exempted from the reach of the ordinance ). Her conduct had but one purpose—to engage in a political protest challenging the City’s ordinance on indecent exposure. Tagami engaged in the paradigm of First Amendment speech—a public protest on public land in which the participants sought to change a law that, on its face, treats women differently than men. It is difficult to imagine conduct more directly linked to the message than that in which Tagami engaged."

Rovner also notes that by applying the opaque body paint to her tits, Tagami was apparently trying to comply with Chicago's anti-female-nudity ordinance, but that didn't fool the ever-alert purveyors of law enforcement.

But for Rovner, the paint hardly matters: "The baring of breasts uniquely conveyed the intensity of the expression of protest and also the degree of commitment of the protestor. We are a society that expresses itself with displays on our bodies ranging from messaged t-shirts and hats, provocative clothing, tattoos, arm bands, and lapel pins. Perhaps this is why so many of our seminal free expression cases involve protected expressive conduct of clothing or the absence of it. ... Public nudity may not always be 'inherently expressive,' (and Ican think of many situations in which it would not be), butto declare, as a matter of law, that it can never be expressive is the quintessence of throwing out the free-expression baby with the non-expressive-conduct bath water."

Rovner also does a good job of dissecting the majority's claim that the anti-female-nudity ordinance is valid for "promoting traditional moral norms and public order."

"It is true that in our society female breasts have been sexualized as objects of desire while the breasts of men have not," she writes. "There is no biological basis for this distinction. The primary functional difference between the female breast and the male breast is not a sexual one, but rather, just the opposite—the fact that the former has the potential to provide milk to sustain a baby, while the latter does not. The City’s claim therefore boils down to a desire to perpetuate a stereotype that female breasts are primarily the objects of desire, and male breasts are not."

Rovner also points out her colleagues' hypocrisy in the wording of its ordinance.

"Of course male and female anatomies are different. But, as we noted, the principal respect in which the female breast is different is the role it plays in feeding infants, and yet that is the one purpose for which Chicago permits the female breast to be exposed in public. ... Any invocation of tradition and moral values in support of a law that facially discriminates among classes of people calls for a healthy dose of skepticism on our part, as historical norms are as likely to reflect longstanding biases as they are reasonable distinctions."

That rational alone should be enough to let Tagami's lawsuit proceed, but Rovner goes a step further, noting that the anti-female-nudity ordinance is actually oppressive to all women in society.

"Whether out of reverence or fear of female breasts, Chicago’s ordinance calls attention to and sexualizes the female form, and imposes a burden of public modesty on women alone, with ramifications that likely extend beyond the public way," Rovner recognizes. "Women, like men, take their bodies with them everywhere, and when the law imposes a different code of dress on women, when it requires them to cover up in a way that men need not, it is quite possible that women will be treated differently—in the workplace, in the public square, on the subway—precisely because they are required to dress differently." [Emphasis added]

Rovner goes on to note that, contrary to the majority's assertion, only three states—Utah, Tennessee and Indiana— actually have laws "clearly treating the exposure of the female breast as indecency."

Rovner states that she has no particular wish to see bare tits in public—but she recognizes that her personal tastes have no business affecting her support for someone's constitutional rights, and concludes that Tagami should have the opportunity to test her constitutional theories in court.

At this point, Tagami has only a couple of choices. She can ask for an en banc rehearing of the Seventh Circuit's decision, which would involve the entire Seventh Circuit bench, or she could appeal the current ruling to the U.S. Supreme Court—a dicey proposition considering that the high court currently has four staunch religious conservatives, with the fifth "swing" vote resting with Justice Anthony Kennedy, who has shown himself to be not as free-speech friendly as most reading this would like him to be. Hence, their "verdict" would be more of a toss-up than it should be.

Maybe if a few women would show up topless for GoTopless Day 2018 in Utah, Tennessee and/or Indiana, the Supremes might be forced to take a real look at the issue.

The full Seventh Circuit decision in Tagami v. City of Chicago can be found here.

Pictured: Noroku Tagami On GoTopless Day 2014.