Topless woman’s complaint splits 7th Circuit

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Marilyn Odendahl for www.theindianalawyer.com

A Chicago woman’s decision to celebrate “Go Topless Day” by baring her breasts has cleaved the 7th Circuit Court of Appeals over whether she can now cloak herself in the First Amendment’s guarantee of freedom of speech.

Sonoku Tagami was cited and fined $150 for violating the Windy City’s public nudity ordinance. She undressed from the waist up, applied not-opaque-enough paint to her chest and walked around Chicago in August 2014 in support of Go Topless Inc.’s advocacy for a woman’s right to bare her breasts in public.

After being found guilty of violating the ordinance, Tagami sued Chicago. She claimed the public nudity prohibition not only violated the First Amendment but also discriminated on the basis of sex in violation of the Equal Protection Clause.

The U.S. District Court for the Northern District of Illinois granted the city’s motion to dismiss. Although the 7th Circuit affirmed in a decision handed down Thursday in Sonoku Tagami v. City of Chicago, et al., 16-1441, the panel was split with Judge Ilana Rovner writing a sharp dissent.

In the opinion written by Judge Diane Sykes and joined by Judge Frank Easterbrook, the majority held that Tagami’s act of appearing bare breasted in public was not expressive conduct as covered by the First Amendment. Her nudity alone did not communicate a message of political protest. And, the majority asserted, she acknowledged this in her amended complaint by offering an explanation of what and why she was protesting.

The majority then went a step further and contended even if her actions were protected by First Amendment, the district court was still correct to dismiss her complaint. Citing United States v. O’Brien, 391 U.S. 367, 376 (1968), the majority held the ordinance’s purpose of promoting moral norms and public order are self-evident and can survive scrutiny.

Rovner disagreed, countering that Tagami’s act was expressive conduct and therefore covered by the First Amendment. Offering an explanation of her protest did not turn her behavior into non-expressive conduct.

“There could not be a clearer example of conduct as speech than the one here,” Rovner wrote. “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.”

Rovner also dissented from the majority’s finding that the city’s ordinance withstands Tagami’s Equal Protection challenge. Even though the majority conceded the ordinance did impose a different set of rules for women and men, it held that the classification based on sex was permissible because of the city’s objective to, again, promote moral norms and public order.

Conversely, Rovner maintained the ordinance sexualized the female form and imposed a burden of public modesty on women alone.

“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,” Rovner wrote.

In concluding her dissent, Rovner pointed out the question before the appellate court was not whether Tagami should prevail but whether she might prevail. This case should not have been dismissed on the pleadings.

“Like any other litigant with a viable case, (Tagami) should be permitted to develop the record in support of her claims, and the City in turn should be required to present evidence to justify its action,” Rovner concluded.

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