In a 2-1 decision, a Chicago federal appeals court has upheld a lower court's ruling that the city of Chicago is within its rights to ban women from going topless in public, even if a woman is trying to use the First Amendment to get a gripe off her chest about how the law allegedly treats women unfairly.
The decision was authored Nov. 8 by Judge Diane Sykes, with agreement from Judge Frank Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit. Judge Ilana Rover dissented.
The decision supported City Hall in a civil rights suit brought November 2014 in Chicago federal district court by plaintiff Sonoku Tagami.
Tagami is a backer of GoTopless, an advocate group that says women should be allowed to go bare breasted in public. On Aug. 24, 2014, Tagami took part in the group's Go Topless Day, by walking about Chicago naked from her waist up, although she applied opaque body paint to her breasts. At any rate, a female police officer cited Tagami on a complaint of violating the city's ordinance against public indecency.
Tagami contested the citation, but was found guilty and fined $150. She then sued the city for violating her First Amendment right to free speech, saying she bared her bosom to protest what she considers archaic laws requiring women, but not men, to keep their chests covered in public.
U.S. District Judge Sharon Coleman threw out Tagami's case. Tagami appealed, but couldn't shake Coleman's ruling.
Appeals Judge Sykes first pointed out Chicago's ordinance regulates conduct, not speech. Going from there, Sykes noted the U.S. Constitution protects forms of conduct that communicate a message, but Tagami's chest alone would not have clearly conveyed to onlookers she was lodging a political complaint against Chicago's ordinance. Rather, Tagami admitted she also had to tell onlookers she was challenging the ordinance.
Sykes observed the ordinance's “essential purposes – promoting traditional moral norms and public order – are both self-evident and important.”
As far as forcing women to cover their chests, but not forcing men, Sykes pointed to a 1996 U.S. Supreme Court offering: “Physical differences between men and women . . . are enduring.”
Sykes' conclusions, backed by Judge Easterbrook, carried the day for Chicago's ordinance, but Judge Rovner submitted a different take.
“There could not be a clearer example of conduct as speech than the one here. Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to earn money, streaking across a football field to appear on television, or even nursing a baby (conduct that is exempted
from the reach of the ordinance).
“Her conduct had but one purpose—to engage in a political protest challenging the City’s ordinance on indecent exposure. It is difficult to imagine conduct more directly linked to the message
than that in which Tagami engaged,” Rovner said.
Rovner went on to assert Chicago is “perpetuating a stereotype that female breasts are primarily the objects of desire, and male breasts are not,” with the motivation behind the ordinance a question of “reverence or fear of female breasts.” Further, the ordinance draws attention to womens' breasts and sexualizes them, in Rovner's view.
Rovner added it is an “open question” whether bare-chested women constitute indecent exposure.
“Do I relish the prospect of seeing bare-chested women in public? As a private citizen, I surely do not. (I would give the same answer with respect to bare-chested men.) But I speak here strictly as a judge, with the responsibility to accord Tagami her constitutional rights,” Rovner noted.
Tagami has been represented by Chicago lawyers Kenneth Flaxman and Joel Flaxman.
The city of Chicago has been represented by city attorneys Michael Dolesh, Thomas McNulty and Ellen McLaughlin.