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

miami-6
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.”

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32 thoughts on “Fort Collins and the Rest of Us: 14th Amendment and Topfreedom

  1. Brilliant news for anyone interested in gender equality. The strength of the judge’s wording is astonishing in its condemnation of the Fort Collins arguments to uphold gender inequality – I hope this bodes well for further judicial scrutiny of the argument.

    Liked by 1 person

  2. How utterly sad – how tragic – how stupid, may I say it – that the issue of a topfree girl or woman is even an issue to be fought over. It’s the ultimate non-issue if you look at it rationally. Society goes in waves as to what it deems normal. At the moment, the female topfreedom topic needs to be fought over, tooth and nail. But we’ve also just about lost our freedom of speech too.

    Offending someone has become almost more serious an offense as murder. Topfreedom for either gender is healthy to the body and mind, it feels great, but it’s whether we’re free people or not that’s the prime focus. However, fight we must, because if we knuckle under to the oppressors, it’s over. And it will be because of our lack of commitment to a worthy cause we hold dear.

    Liked by 2 people

  3. This is major. Besides the reasons previously explained, but politically, for what wasn’t mentioned. This decision came down in the Tenth Circuit. Made up of mostly very conservative states. It didn’t come down from the Ninth, a fairly liberal court, where most decisions of this nature tend to come from. This decision put a great big NO in front of the conservatives.

    Liked by 3 people

    1. Colorado, Wyoming, New Mexico, Utah, Oklahoma, Kansas. It’s amazing. This opinion only applies to Colorado for now, an appeal would apply to all those states. An appeal above that would be the Supreme Court. I can’t see Fort Collins fighting. It’s an expensive suicide mission.

      Liked by 2 people

      1. It is astonishing how many staunchly conservative states are in the 10th circuit and the potential for forcing a major rethink by those state legislatures. Not only that, but if political representatives are forced to think differently, those who invoke the “think of the children” argument will be forced to ditch that line of thinking because it is incompatible with the laws on breastfeeding and basic human behaviour towards babies and young infants.

        As you said, an appeal would be an expensive suicide mission due to the strongly worded opinion by the judge, invoking the U.S. Constitution and tearing up the argument by Fort Collins, one by one with surgical precision. Another judge may have a different interpretation of the law but, at the moment, that ruling is the most important. However, if the politicians in Fort Collins wish to uphold gender inequality, they may decide is better to go to the electorate and say “at least we tried”. On the other hand, if the electorate in Fort Collins is fairly liberal, it’s probably better to cut their losses.

        Liked by 3 people

    1. Now, now, there’s no need for that type of stereotypical bogotry, especially since it’s now the conservative states who are upholding a principal those of us who follow this site believe in.

      Liked by 1 person

    2. I wasn’t going to say anything about this assertion that conservatives are not known for logical thought, but that’s just plain wrong. I’m one, and a real conservative – I mean real – values logical thought and does not believe in controlling others who pose no actual threat to them. Topfreedom for both sexes feels great and has been proven to be beneficial to the body and mind. If someone claims to be a conservative [in their own mind] and fights us on this , they’re proving themselves to be intellectually dishonest. It’s the other side that seeks to control that which they refuse to understand or see the merit of others’ views.

      Liked by 2 people

      1. And I very much much appreciate and recognize that the topfreedom movement has support from a spectrum of liberals and conservatives. As I have pointed out before some of my strongest personal supporters here locally identify as devout Christians and political conservatives, who support and prioritize the ideals of equality and personal freedom. And I have received vitriol from people who identify as liberals. And everything in between. Generalizations order a chaotic world but they also create the potential for mischaracterization. Thank you again for being polite while also making your strong feelings clear. I recognize and appreciate that too.

        Liked by 2 people

  4. Regardless of the ruling, or where it happened, what matters the most is that the story got national press. Even better, it was covered fairly, without hyperbole from anyone. Yes, there will be haters, there always will be, but they didn’t get a lot of undue attention.

    Liked by 3 people

  5. How interesting. One aspect which you may be missing–so far–is the publicity value of the decision. Because the decision went against some social expectations, we have publicity . . . and publicity means that people in the public are discussing and thinking about the issue. On some of these issues of freedom and social change, I think that the people themselves are often more liberal, in the sense of new-freedom promoting, than courts and legislatures.

    The decision means that anyone in the 9th circuit who wishes to challenge an anti-topless=indecency law can do so with the arguments found in Jackson decision.

    At least, I assume that the 9th and its lower courts have not yet ruled on this kind of question.

    Liked by 2 people

  6. This is wonderful news! This is the first time I have ever seen an argument this clear and compelling from an actual court.

    We obviously can’t be complacent, and the progress towards equality needs to continue, but I find great encouragement in how far this seems to have come, even at this early state. It seems like in just a couple years time, we’ve gone from it being mostly unheard of (other than a few states and cities, GoTopless Days, etc) to something actually getting publicity, actual court cases that can make a difference, positive nationwide media coverage, activists and supporters like you that are helping to show barechestedness in its true natural normal light in a way that even those skeptical have to take another look, etc, and I’m really hoping that decisions like this help create an environment much more prone to further advancement. 🙂

    Keep up the great work! Thank you so much for this encouraging article, especially laying out the decision in the judges’ own words (one of the best rulings I’ve read in modern history!!!)

    Liked by 4 people

  7. OK, next question . . . a few years ago, it used to be more or less legal to be nude in reasonable circumstances in Huntington beach . . . and there was a guy (not me) who irritated the public, and the huntington beach city council passed a law on public nudity and the law forbids breasts to be exposed unless you are breast feeding. There is also Venice beach and the people of venice beach as expressed by their neighborhood council wish to go topfree but they are under LA city law which says they can’t. Is there a California woman resident who at times visits or lives in LA and/or Huntington Beach and who would enjoy making the argument in federal court by means of adopting the arguments that were persuasive to the judge in the Fort Collins case? If and when you file in federal court, it either costs $400 or you fill out a form indicating your income is below a certain level and so you are entitled to file for free. Also, if and when you file, a person needs to be emotionally ready for the possibility of losing in court–which can be emotionally irritating, but in a civil case on the matter of constitutional protections, it is actually not physically harmful and usually not financially harmful either. Of course, Anni Ma is suing LAPD and part of her suit might include these arguments (that were found persuasive in the fort collins case)–but I don’t know!

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    1. Actually, the just addresses the issue of harm and damages in his opinion and asserts that any time a person’s consitutional rights are denied, it represents a serious injury, and any day spent waiting for a return of a right rescinded constitutes damage. Even one day. I think the language in this opinion is going to prove influential, not as a legal precedent, but as the first federal voice to speak so clearly on it. It will change how people hear the conversation.

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      1. I suspect the ruling would be binding on anything deemed as a public accommodation (i.e., open to the general public like hotels, water parks, etc..) even though they may be privately owned. However anything deemed a private club (i.e., where you have to apply and qualify for membership) would be able to discriminate and have their own rules. Similar rules apply for other forms of discrimination (skin color, gender). For example, a restaurant would be in trouble if they refused to serve a black person or a woman; but a country club that has membership requirement and charges a fee is free to admit who they want and set their own rules.

        I would like to think it would work the same way with this topfreedom ruling, but sometimes the law is wacky so I’d be interested with hearing how the lawyers respond if they have a chance.

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        1. There are actually two different realms. One is the law written by the city or state to prohibit a certain behavior and the other is the question of a business or public accomodation place discriminating. The fort collins decision seems to be saying that a city or state cannot have a law that distinguishes between male and female breasts on the basis of gender without an overwhelming governmental interest–and that there is no such overwhelming governmental interest demonstrated to the court at this point in time, or even, at this point, hypothesized. The 14th amendment says that no person shall be deprived of privileges, rights and immunities without due process of law and all persons shall have the equal protection of the law.

          There is different question and a different realm as to whether or not a city-run or private swimming pool or a health club can discriminate on the basis of gender in persons going without a top.

          If a city cannot successfully prevent the ladies from going without a top at the beach or park, I think they will have difficulty making a good argument for retaining the insistence on women wearing a top at the city-run swimming pool.

          I have been a member of ymca and of various other similar health club such as 24 hour fitness and gold’s gym. There are health clubs which have a hot tub and swimming pool and there are hotels which do and there are even cheap “motels” which do depending on the locale and there are apartment buildings which have such swimming pools.

          Some of these places want to seem to be family friendly and some are less concerned about that idea.

          Is it discrimination on the basis of sex for the health club and ymca for them to require the women to wearing a top? Yeah, it is . . . but it may take a 2nd court case to get one of them into court to have to admit it. The court case would be easy to win in a jurisdiction that had accepted the fort collins decision or its reasoning–but in some cases, some things do not get done till someone brings a lawsuit. There are lots of things wrong in the world and in the US that are a lawsuit waiting to happen and get resolved, but not everybody wants to sue and so we wait till people sue and win.

          I am one of the many non-lawyers speculating . . .

          Liked by 1 person

      1. OK, I have questions . . . you speak of moving the line.

        If and when you are more “finished,” where would you like the line to be?
        That all women and girls in all 50 states can go topfree in all places a guy or boy can be topfree?
        Park and beach is obvious. What about driving in your car in the summertime or walking on the sidewalk of the city but not within a few blocks of the nearest park or beach? I have driven a few times topfree while driving to the park or beach. In weather above 70 or 75, I think there are guys who at times walk topfree on some of the sidewalks of most “near-beach” towns such as San Diego or Oxnard, California. (San Diego has some beaches and downtown SD is not at the beach or is at least a mile or two away from the beach, I think.)

        Do you wish to include being topfree as a form of protest, such as the situation in which the young woman was arrested or cited in LA at a Sanders rally? By your count, how many states have decided to be topfree-friendly and how many are still topfree-opposed? Also, in what way is your “work” frustrating? There are some states which are friendly to you and some states which are unfriendly to you. With the unfriendly states, what do you think of doing, other than exposing their unreasonableness and waiting?

        I am not trying to be difficult; I am supportive. I suppose that if I were able to travel to 4 or more other states and wished to walk at the best park in nearly nothing, and the state or city would not let me, I would feel bad or sad, but I am not frustrated. Even where I live, there might be a different enforcement of IE from city to city . . . I walk in a thong at the park in the most liberal city and the city tolerates me. Would I be tolerated at the rich or more exclusive cities? I don’t know!

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  8. As one of the named plaintiffs in this specific case oder like to address a few things. 1,the city did not make an “emergency decision” to pass the gender based language. That passed way before we came around. When we brought the discrimination the their attention they told us they would not change it. After a few more city council meetings they voted on an addendum to the ordinance stating that with the new ordinance, girls as young as 10 years old could be tried as an adult if caught without a shirt. The city council unanimous voted to sexualize children. The pro-tem Jerry Horak flat out told us wed have to sue to change anything. So we gave them what they asked for. We sued not just for gender equality but also to fight the forced sexualization of children by the city government. The city has indeed decided to appeal the details I sion to save face with their constituents. However,it’s been estimated to cost fort collins city tax payers $250,000,00. in legal fees alone. The city has hired a team of attorneys to defend them. I’d like to add as well that the city attorney’s first recommendation to the city council was to remove the gender based language from the ordinance all together,and they fought her too. You don’t have to agree with it but to disagree with the basic idea of equal protection under the law because you can’t see women as equal people is a detriment to society. MRA’s are a dying breed.

    Liked by 1 person

    1. Hey Samantha! It’s exciting to have you commenting on my blog. Thank you for these important clarifications. It has been difficult to sort through the limited and incomplete information available to me to grasp the situation and history. This helps. If you are willing and interested I would be quite willing to share your story, written by you, as a blog post here. It can be as short or long as you like but it would help me and my readers contextualize the decision and forthcoming appeal. Up to you. No pressure.

      As to the substance of your message, I also find it amazing how lawmakers don’t understand how their words sexualize young girls. They say we have to protect girls from the men who think of them in sexual terms and I always think… It’s you doing this! You made this law because you see 11 year old girls as sexual objects. Grrr. Well, if I can help you in any way with the case let me know. Thank you for writing. I hope you are feeling well and are on the mend.

      Liked by 1 person

  9. This is david in Seattle with Seattle news. Seattle has 2 or 3 small and semi-secret parks in which people have gone topless or fully nude for years, but those parks are very small and isolated and newcomers to Seattle might not even know about them. The major parks which both include beaches and have hundreds of visitors are Greenlake, Alki, Seward Park and Madison park beach. Clothing choices have become more liberal at Greenlake, partly because I have walked in a thong and there has been no negative police action. Today, at Greenlake, there was a woman topfree, sitting up, face up and in view of passerby on the walking path while she was sitting and resting or talking with a friend. Maybe the heat near 80 degrees made a difference and a lot of people would have taken off pants or shirts simply to not sweat in them. I wanted to not be in socks and pants. Anyway, there was no negative public action when I was in the area and no known police action as reflected in the crime map. Seattle has an online crime map and a person can check and see if there were any responses to 911 calls and the topic of the call. In past years, there were at times a woman who might go topfree at the ending of one of the small piers where they were 40 or 50 feet away from passerby. In any case, one woman on one day has gone topfree at Greenlake in 80 degree heat without incident . . .

    Like

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