Original post by Matt Love
There seems to be confusion about whether the 10th Circuit’s opinion in Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) created a Constitutional right for women to be topless in public. Adding to this confusion was the response by Oklahoma’s Attorney General who stated that the opinion was “not binding” in Oklahoma. The purpose of this post is to clarify what the actual holding was in Free the Nipple, whether that holding is binding in Oklahoma and, finally, to address concerns about possible liability after Free the Nipple.
NO CONSTITUTIONAL RIGHT TO BE TOPLESS IN PUBLIC
The Free the Nipple Plaintiffs tried to establish a Constitutional right for women to expose their breasts in public. They failed. Free the Nipple v. City of Fort Collins, 216 F.Supp.3d 1258 (D. Co. 2016). Plaintiff argued that being topless in public is a form of expression that is guaranteed and protected by the 1st Amendment. They lost on this argument because the exact argument has been considered and rejected by the United States Supreme Court on 2 prior occasions in Barnes v. Glen Theatre Inc., 501 U.S. 560 (1991) and City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). Being topless in public is not inherently expressive activity. As such, laws prohibiting women from being topless in public do not violate the 1st Amendment.
There is no Constitutional right for women to be topless in public.
ALL BREASTS ARE CREATED EQUAL (AT LEAST IN THE 10TH CIRCUIT)
The Free the Nipple Plaintiffs also argued that the City’s topless ban violated the Equal Protection clause of the 14th Amendment because it only applied to women. This was the claim that gained traction and resulted in a favorable ruling at the District Court. That was the ruling that the 10th Circuit was considering in the appeal.
Laws which treat men and women differently can be challenged under the Equal Protection clause. When the law creates a distinction based on gender, Courts will grant no deference to the judgment of the legislature as to whether a law was necessary or appropriate. Courts will require the government to defend its gender-specific law by proving 1) that the law was adopted to serve an important governmental interest and 2) that the means employed in the law were substantially related to serving that interest.
City argued that the female only topless ban served 3 important governmental interests: protecting children, promoting traffic safety, and maintain public order. City argued that the negative impact the public exposure of female breasts would have on each of those important interests justified a female-only topless ban. The core premise of City’s argument was that the negative impact is linked to the inherent physical, social and sexual differences between female and male breasts.
The 10th Circuit rejected this core premise. The Court recognized that there are differences between the breasts of men and women which are rooted in both societal norms and basic biology. To the Court, those societal and biological differences should not be codified in the law because the Court felt the distinction between the breasts of men and women is really rooted in generalizations about “the way women are”. Laws rooted in such generalizations create “a self-fulfilling cycle of discrimination” which perpetuate inequality between the genders. Essentially the Court held that the City’s ordinance was based on generalizations even though the City presented sociological and biological evidence.
Having rejected this core premise, the Court held that the City failed to prove that a female only topless ban substantially served the 3 governmental interests the City cited. The Court found that City presented no evidence that the public exposure of female breasts would actually negatively impact children, traffic or public order. City presented no evidence that the women of Fort Collins were actually preparing to take to the streets en masse and sans tops. To the Court, there was no evidence offered by the City as to why it needed to adopt this ordinance at this time.
There should have been ample evidence, the Court held, since Boulder and Denver had enacted laws which allowed for public displays of female breasts. Since 2 cities had recently enacted ordinances allowing women to be topless in public, there should have been actual evidence of the negative impact on children, traffic or public order from those cities. The lack of evidence of any harmful effects in those two communities was telling, at least to the Court.
Free the Nipple was about equality, not nudity. It did not establish a right for women to be topless in public. Rather, it was a statement from the Court that, when it came to breasts, the Court will not look kindly on laws that only apply to women. The outcome would likely have been much different had the City’s topless ban were gender neutral and/or if the City had produced more concrete evidence as to why they needed to ban topless women for the first time ever in 2015.
NOT BINDING, JUST LIKELY BINDING
Free the Nipple did not hold that the City of Fort Collins’ female only topless ban violated the Equal Protection Clause. The 10th Circuit only held that the ordinance “likely” violated the Equal Protection clause. While this may seem like the type of semantical jiu jitsu that only a lawyer could love, the ruling is actually the result of legal procedure rather than legal gamesmanship.
The Free the Nipple Plaintiffs had obtained a preliminary injunction at the outset of the litigation which prohibited the City from enforcing its new ordinance until the case was fully litigated and a final decision made on the Constitutionality of the ordinance. It was the order granting the preliminary injunction which was appealed to the 10th Circuit. As such, the 10th Circuit was not considering a final ruling on the Constitutional issue.
A preliminary injunction can only be granted if the Court finds that the Plaintiff is likely to prevail on the merits of their claim. Preliminary injunctions are evaluated before the parties have a chance to conduct full discovery on the factual and legal issues. They are granted or denied after a truncated presentation of evidence and argument at a very early stage of litigation. As the name implies, the ruling is preliminary.
When Attorney General Hunter said that Free the Nipple is “not binding” in Oklahoma, he was not questioning the jurisdiction of the 10th Circuit or the supremacy of the Equal Protection clause. Instead, he was noting the legal reality that Free the Nipple was a ruling on a preliminary injunction and not a final ruling on the Constitutionality of such an ordinance.
This does not mean that Free the Nipple is irrelevant. Free the Nipple may not be binding precedent as to whether female only topless bans violate the Equal Protection clause, but the opinion is still precedential as to the legal analysis it employed. As a published 10th Circuit opinion, Judges in Oklahoma will be bound to utilize the Court’s analysis if confronted with a similar Equal Protection challenges on female-specific law.
First, Judges will likely employ a heavy degree of skepticism when evaluating whether the differential treatment of men and women in a law is based on actual differences between the sexes. The Court in Free the Nipple noted the City’s sociological and biological evidence regarding those differences and still concluded that the City was relying on stereotypes and generalizations. If a similar challenge were lodged in Oklahoma, a Court would be hard pressed to employ any less skepticism if the government utilized similar evidence to support a position that the actual differences between men and women justify differential treatment in the law.
Second, Judges will likely require concrete proof of the actual harm that will be inflicted on the public if the challenged law were not in place. Speculation will likely be insufficient and may garner a rebuke as being rooted in the very generalizations and stereotypes condemned by the 10th Circuit. Free the Nipple requires actual proof, not mere speculation.
In this respect, Oklahoma municipalities might have a slight advantage not available to the City of Fort Collins. Two large communities in Colorado had enacted ordinances affirmatively permitting women to be topless in public. The Court expected Fort Collins to bring proof from those cities about the harm wrought on their communities by the presence of topless women. It was telling to the Court that no examples were provided by the City. By contrast, OMAG is not aware of any Oklahoma ordinances permitting women to be topless in public. This could be used as a basis to argue that tangible proof of harm already inflicted would be unavailable in Oklahoma.
Free the Nipple was about what the City did not have – facts. If your municipality is considering a female specific topless ban, OMAG would encourage you document why such an ordinance was needed at that time. Assumptions can be fatal in a gender-based Equal Protection challenge.
CIVIL LIABILITY AFTER FREE THE NIPPLE
Given the ambiguity at to the binding nature of the opinion, what risk exposures exist after Free the Nipple? The first area of concern would be if a municipality were to enact its own female-only topless ban. With no final and binding ruling from the Court, OMAG cannot conclusively state that such a gender-specific ban would violate the Equal Protection clause. Further, as discussed above, there are some subtle differences in Oklahoma that did not exist in Colorado which might make an Oklahoma ordinance more defensible than a Colorado ordinance.
A challenge to such a newly adopted ordinance would not likely be defended by OMAG. Those challenges typically are not lodged as claims for money damages. OMAG’s liability coverage is limited to claims for money damages. If your municipality is considering such an ordinance, you may have defend the ordinance at your expense. OMAG would strongly encourage your municipality to conduct research and document your findings as to why such an ordinance needed to be adopted. This also includes collecting evidence and documentation as to the actual not harmful impact the activity you are prohibiting has or would have on your community.
As for enforcement of existing laws on indecent exposure, Free the Nipple should have little to no impact on law enforcement. The most obvious concern would be a possible false arrest and/or 4th Amendment seizure claim. Free the Nipple made no final determination on the Constitutionality of gender-specific topless bans and has no relevance to gender-neutral indecent exposure laws.
4th Amendment and/or false arrest claims are evaluated based on whether there was probable cause to believe the law was broken. Unless and until the law under which we are citing or arresting a person is declared Unconstitutional, such claims will turn on whether the Officers had a factual basis to established probable cause for issuing the citation.
Further, the fact that the 10th Circuit’s opinion was not a final ruling on the Constitutionality of such a gender-specific law should mean that officers will be shielded from personal liability in a civil rights claim thanks to Qualified Immunity. A public official can only be held personally liable if they are found to have violated a clearly established Constitutional right. A right is not clearly established unless existing precedent places the Constitutional questions “beyond debate.” The question of whether female only topless bans violate the Equal Protection has not been answered by the 10th Circuit (or the Supreme Court). The only way that issue could be “beyond debate” without a 10th Circuit or Supreme Court ruling on point would be if the weight of the caselaw from other Circuits made it clear that such a gender-specific law would be Unconstitutional.
As it turns out, several other Circuits have addressed whether female only topless bans violate the Equal Protection clause. As it turns out, every Circuit which has issued a final ruling on that question has ruled that female only topless bans do not violate the Equal Protection clause. U.S. v. Biocic, 928 F.2d 112 (4th Cir. 1991), Tagami v. City of Chicago, 875 F.3d 375 (7th Cir. 2017) and Free the Nipple-Springfield v. City of Springfield, 923 F.3d 508 (8th Cir. 2019).
The United States Supreme Court could weigh in on this issue if it accepts an appeal from a ruling out of the New Hampshire Supreme Court in State v. Lilley, 204 A.3d 198 (N.H. 2019) (finding no Equal Protection violation for a female only topless ban). The Court accepts very few appeals, so it is unlikely the Court would accept Lilley (especially since it joins the chorus of final rulings which all hold that female only topless bans do not violate the Equal Protection clause). We will know in a few months whether they accepted or rejected that appeal.
Finally, there is a potential cause of action for discriminatory and selective enforcement of the law. Whren v. U.S., 517 U.S. 806 (1996). Whren holds that 4th Amendment claims are about probable cause and not discriminatory intent. If probable cause otherwise exists for an arrest, then there is no 4th Amendment violation. Discriminatory enforcement claims must, therefore, be brought under the 14th Amendment (Equal Protection) rather than the 4th Amendment. Such a claim requires proof of an officer’s discriminatory intent on top of a showing of a discriminatory impact. To date, OMAG is aware of no successful gender profiling challenges.