On Monday, a court upheld a Chicago ordinance banning public nudity in a challenge that the ban violated First Amendment and Equal Protection protections in Tagami v. City of Chicago et al.
In August 2014, Sonoko Tagami participated in a “Go Topless Day” protest organized by an organization that advocates for the right of women to appear bare-chested in public. Tagami was cited in violation of Chicago’s public nudity ordinance, which provides that:
Any person who shall appear, bathe, sunbathe, walk or be in any public park, playground, beach or the waters adjacent thereto, or any school facility and the area adjacent thereto, or any municipal building and the areas adjacent thereto, or any public way within the City of Chicago in such a manner that the genitals, vulva, pubis, pubic hair, buttocks, perineum, anus, anal region, or pubic hair region of any person, or any portion of the breast at or below the upper edge of the areola thereof of any female person, is exposed to public view or is not covered by an opaque covering, shall be fined not less than $100.00 nor more than $500.00 for each offense. Municipal Code of Chicago § 8-8-080.
In October 2014, Tagami appeared before an Administrative Law Judge and was found liable for violating the Ordinance. Tagami filed a lawsuit in federal court. The case alleged, among other things, that the City Ordinance violated her First Amendment right to freedom of expression and her equal protection rights by creating a sex-based classification. The Court dismissed both of Tagami’s constitutional claims.
First, the court dismissed her freedom of expression claim because Tagami failed to provide any message through her act of public nudity. The Court noted that public nudity is not inherently expressive and, and found a lack of facts showing that “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”
Second, the court dismissed her equal protection claim because Tagami did not show that the Ordinance created any sort of “artificial restraint” or that it “perpetuated an assumption of inferiority: that the sight of a female’s breast is offensive in a way that the sight of a male’s breast is not.”
Although the case provides support for municipal authority to regulate public nudity, municipalities should take care to ensure their ordinances serve other important government interests and are not solely designed to prohibit possibly expressive conduct.
Post authored by Daniel J. Bolin and Douglas E. Spale