Women's Boobs Are Not Free Speech, Says Federal Court

Because 'traditional moral norms' trump civil liberties

To protect public health, safety, and morals, the government has an important interest in preventing women from going topless, a federal appeals court has ruled. And the importance of keeping lady breasts out of public view overrules any First Amendment or equal protection issues that such a policy raises.

But at least one dissenting judge felt differently, describing our topless protagonist as having "engaged in the paradigm of First Amendment speech—a public protest on public land in which the participants sought to change a law that, on its face, treats women differently than men."

The case (Tagami v. City of Chicago) stems from the 2014 ticketing of Sonoko Tagami, who took to the Chicago streets with only opaque body paint over her bare breasts to celebrate "GoTopless Day" that year. Tagami was issued a $100 citation for violating the city's ban on public indecency, which prohibits the public display of female breasts and of all bare butts and genitals. After losing her challenge to the citation, Tagami filed a lawsuit with the U.S. District Court for the Northern District of Illinois.

Tagami's suit argued that banning women from going topless in public while allowing men to do so is a violation of the 14th Amendment's Equal Protection Clause as well as her First Amendment rights. Neither the district nor appeals court agreed, dismissing Tagami's claims.

In a November 8 decision, the U.S. Court of Appeals for the 7th Circuit held 2–1 that the city's rules don't violate women's constitutional rights. "Chicago's public-nudity ordinance regulates conduct, not speech," wrote Judges Diane Sykes and Frank Easterbrook for the majority. And while "some forms of expressive conduct get First Amendment protection," this doesn't apply unless the conduct is inherently expressive.

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