Fort Collins and the Rest of Us: 14th Amendment and Topfreedom

Miami Beach, Florida, January 2017. I don’t have any photos related to Fort Collins, so here’s a photo of me not creating a fuss at the beach. I’m breaking my rule of obscuring my breasts in my cover photo in the hopes this article can circulate on Facebook without being banned, for once.

Disclaimer: I’m not an attorney.  But I have some attorneys helping me, and I would like to share what they have taught me this morning about the Fort Collins decision yesterday.

Nutshell: Last year a group of “Free the Nipple” protesters, AKA bare-chested women, appeared in Fort Collins, Colorado, where at the time there were no laws to forbid them from doing so.  Shortly thereafter, the city council passed an “emergency” law with language saying men could go bare-chested but women couldn’t.  The protesters sued in federal court and a few weeks ago Judge R. Brooke Jackson (a male) issued a temporary injunction against Fort Collins, meaning the town could not enforce the law until a trial had been held.

Yesterday, in response to some debate among the parties, Judge Jackson issued a very strongly worded opinion in favor of the protesters, declaring the Fort Collins law to be in violation of the 14th Amendment.  Here is a link to Judge Jackson’s opinion.

Here are some highlights:

• I find that the evidence Fort Collins has presented about these governmental interests amounts to little more than speculation. For instance, during the hearing defendant called Assistant Police Chief Jerome Schager who testified that topless females in public likely might cause distracted driving and traffic issues that disrupt public order. There are many things that could potentially distract drivers and disrupt traffic, but the constitutional issue is whether there is such a threat to public order that it rises to the level of an important government interest. Frankly, without any significant evidence on this point, I’m skeptical that it does. Rather, it appears that underlying Fort Collins’s belief that topless females are uniquely disruptive of public order is the same negative stereotype about female breasts that I discuss in more depth later—namely, that society considers female breasts primarily as objects of sexual desire whereas male breasts are not. (Page 5.)

• Nor has Fort Collins provided any meaningful evidence that the mere sight of a female breast endangers children. The female breast, after all, is one of the first things a child sees. Of course, those are very young children, but children of any age might come upon a woman breastfeeding a child and see a naked breast.  Yet no one suggests that they are harmed by that experience. Indeed, public breastfeeding is permitted by Colorado law. See C.R.S. § 25-6-302 (“A mother may breast-feed in any place she has a right to be.”). It seems, then, that children do not need to be protected from the naked female breast itself but from the negative societal norms, expectations, and stereotypes associated with it.  (Page 6.)

• Unfortunately, our history is littered with many forms of discrimination, including discrimination against women. As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment.  (Page 7.)

• But I do not accept the notion, as some of those courts have, that we should continue a stereotypical distinction “rightly or wrongly,” or that something passes constitutional muster because it has historically been a part of “our culture.” We would not say that, rightly or wrongly, we should continue to recognize a fundamental difference between the ability of males and females to serve on juries. (Page 9.)

• After much thought, I have concluded that going out on this lonely limb is the right thing to do. I have no more right to fall back on “the way we have always done it” than others who have reassessed their thinking. (Page 10.)

• Plaintiffs also argue that the Fort Collins ordinance violates the Equal Rights Amendment of the Colorado Constitution… However, because I have concluded that the ordinance violates the federal constitution, I need not reach or decide the state constitutional issue. That determination is best left to the Colorado courts. (Page 10, footnote.)

• One might ask, how can there be an irreparable injury if plaintiffs are prohibited until a final trial on the merits from doing what they have been unable to do for centuries? The short answer is that any infringement of one’s constitutional rights inflicts an irreparable injury… Any time the government denies a person a constitutional right or protection, that person’s injury is serious. (Page 11.)

• Finally, with respect to whether this preliminary injunction is in the public interest, I note that, as many courts have too explained, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” (Page 12.)

Breathtaking language.

So breathtaking in fact that it could fill us with euphoria at the prospect of a national standard disallowing laws against females going bare-chested.

While very, very important and potentially quite influential, this opinion does not create a national precedent in the legal sense, meaning one that would bind other courts around the country.

What it does do, however, is give us a stunning blueprint of how to proceed in other jurisdictions.  It’s like saying, if you want to win in federal court, say this, do this, argue this.  And now armed with these tools, we can approach local and state governments and say see?  This is what you will be up against.  Until now it has only been conceptual.  Now it is real.

So that’s what it means from a social organizing perspective.  But what does it all mean legally?  Here are the words from one of my (and topfreedom’s) strongest supporters, the creator of the Topless New York series, a civil liberties attorney who emailed me this morning to explain what this opinion is and is not.

Keeping in mind that I can’t give you legal advice (sorry, I’m just required to say that), yes, as far as I’ve been able to find, this is the first time a federal court has said that “indecent exposure” laws that prohibit women’s bare breasts in public but not men’s would violate the Constitution. IF AND WHEN there is a full trial on the merits, and the judge actually declares the law unconstitutional (remember, all he’s said so far is that the plaintiffs are likely to prevail in a full trial on the merits), that will invalidate the Fort Collins law and, theoretically, any other municipal laws in the District of Colorado (the whole state) that are similarly discriminatory.

If that’s the end of the story, that is also the end of the effect of the court’s ruling, at least as far as any binding precedential value it has. Other federal district courts may consider the ruling to be “persuasive” precedent, but since they’re on the same level as this court, it would not be binding on them. And it would be even less binding on any U.S. Courts of Appeals, though they would also be free (if less likely) to consider it persuasive.

If Fort Collins appeals a trial ruling to the U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY), a panel of judges there will review the case. On questions of whether laws are constitutional, the standard of review is “de novo,” or as if new – they will not just decide whether Judge Jackson was within his purview (or out of his gourd) to make the ruling he did, they will consider the question of whether the Fort Collins law is constitutional as if it’s before them for the very first time. If they also say the law is unconstitutional, that will invalidate the Fort Collins law and, theoretically, any other municipal laws in the entire 10th Circuit – all six states – that are similarly discriminatory. (Note that one of the reasons Jackson was able to rule the way he did was that the Tenth Circuit has not previously ruled on this specific issue, so it’s a “matter of first impression.”)

As I read the opinion, and as far as I’m aware, there are three circuits that have ruled the opposite way – 2d, 5th, and 6th. If the 10th Circuit upholds a Jackson trial court ruling and strikes down the Fort Collins law, that creates a “circuit split” – a condition where what is considered a constitutionally permissible law in one part of the country is not considered so in another part of the country. That is one circumstances that makes it somewhat more likely, but not at all a guarantee, that the U.S. Supreme Court would eventually take up the question if someone petitions for certiorari from a Circuit Court of Appeals ruling. They may just vote not to take the case if they think it’s not an important enough question to be considered, even if it leaves a circuit split in effect.

In order for Maryland to be absolutely bound by a precedent, that precedent has to come either from a U.S. District Court in the District of Maryland, the 4th Circuit Court of Appeals, or the U.S. Supreme Court. A U.S. District Court in Maryland – and also a Maryland state court at any level – is permitted to consider Jackson’s Colorado ruling (either this one or a later full trial ruling) as persuasive precedent, as long as there is no binding precedent to the contrary. And as far as I understand it, no court binding on Maryland has considered this question. (The last three sentences are also true if you replace “Maryland” with “Delaware” and “4th” with “3d.”)

So there we have it, for now.  Weigh in with your comments.  What do you think this means?  If we can remain civil, as alway, I would appreciate it.

As often happens in these proceedings, one opinion about one town creates ripples.  I am so happy Judge Jackson used this strong language and that Brit, Samantha and the equality advocates in Fort Collins, of all genders, have won the day.

Time will tell what it means to the rest of us.  It can only help.

And for the true topfreedom nerds out there, here is some of the media coverage to dissect.

http://www.thedenverchannel.com/news/front-range/fort-collins/federal-judge-grants-

injunction-barring-fort-collins-from-enforcing-rule-banning-topless-women

http://www.denverpost.com/2017/02/22/topless-fort-collins-free-the-nipple-regulation/

http://www.coloradoan.com/story/news/2016/12/20/fort-collins-free-nipple-fight-continues/95620974/

http://www.usatoday.com/story/news/nation-now/2017/02/22/judge-women-can-go-topless/98280372/  (Complete with a reference to me as a “bare-chest activist.”