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

Because 'traditional moral norms' trump civil liberties

Splash News/NewscomSplash News/NewscomTo 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."

Going topless might not be inherently expressive, "but to declare, as a matter of law, that it can never be expressive is the quintessence of throwing out the free-expression baby with the non-expressive-conduct bath water," Judge Ilana Rovner wrote.

And while Rovner notes that as a citizen, she doesn't "relish the prospect of seeing bare-chested women in public," she thinks the plaintiff here does present "potentially viable First Amendment and sex discrimination claims."

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.

Whatever Tagami's political intent in going topless, she did so while expressing her views about the issue in other ways at the same time. "The presence of additional explanatory speech 'is strong evidence that the conduct...is not so inherently expressive that it warrants [First Amendment] protection,'" wrote the judges, quoting a Supreme Court case about military recruitment on campus. And because it is not "overwhelmingly apparent" that a woman walking down the city streets bare-chested "expresses a political message," the act does not qualify for First Amendment protection, they ruled.

But isn't it? It's still illegal for women to go topless in most places across America. Sure, there are nonpolitical reasons why a woman might momentarily do so: breastfeeding, sunbathing, going wild at Mardi Gras, some sort of psychotic break or, worse, performance art. Yet to walk calmly topless down the street for an extended period of time, in the company of other topless women, soliciting nothing, seems pretty inherently expressive to me.

Had they not carried posters or shouted slogans, an army of bare-breasted women barreling down the street would probably get their intended message across, or at least get across the idea that it was a political statement of some sort.

Even so, when speech and nonspeech elements are combined to convey a political message, courts have held that prohibiting the nonspeech part is still cool so long as the prohibition is related to "an important or substantial government interest." In this case, the court agreed with Chicago that allowing shirtless men but not women in public was necessary to protect "health, safety, and traditional moral norms."

The judges cite a 1991 Supreme Court case that justified public nudity prohibitions because they are "of ancient origin" and "exist in at least 47 States." Similarly, they added, the Chicago law has "existed in one form or another for decades" and its relationship to "promoting traditional moral norms and public order" is "self-evident and important."

As for Tagami's equal-protection claim, Chicago argued that specifically prohibiting female but not male toplessness "does not actually classify by sex" since the reason more of women's bodies must be covered is "wholly attributable to the basic physiological differences between the sexes."

This is, of course, silly: Both men and women have breasts, and the only reason women's bare breasts are supposedly more endangering to public health, safety, and morals is because of cultural norms, not physiological ones. Still, the judges held that even if the city is wrong on the first part and the law really is a sex-based classification, it's an allowable one because it serves the "important government objectives" of preventing people from seeing women's breasts.

In her dissent, Judge Rovner pointed out that "the speech at issue here is that which offends many, makes many others uncomfortable, and may seem trivial and unimportant to most." But "the First Amendment protects not just the speech which a majority of people find persuasive and worthwhile," and "its protections are most essential when the speech is that with which most take offense. This is the caveat that must be emphasized beyond all else in this case."

In dismissing the case before it even got to court, the district court and majority here have "declared that there is no set of facts under which Sonoko Tagami's participation in an annual 'Go Topless Day' protest—an event sponsored by a 501(c)(3) group advocating for gender equality in indecency ordinances—could be viewed as expressive conduct," notes Rovner.

But contra their contention that "Tagami's public nudity did not itself communicate a message of political protest" and required additional speech, "the fact that Tagami included some explanation with her conduct does not necessitate a finding that her message would not have been understood otherwise. Accompanying explanations do not turn expressive conduct into non-expressive conduct," Rovner wrote.

She likened their legal reasoning to declaring that "wearing a black armband would constitute expressive conduct, but wearing an armband and shouting 'No more war!' would not" and suggested that we can't "evaluate the expressive content of public nudity divorced from the context" in which it takes place.

It is akin to taking a picture of a recent women's march protest and enlarging it again and again to isolate a single marcher wearing a pink hat and concluding from the picture of a single hat-wearing marcher alone that the conduct is not expressive because the wearing of a hat 'd[oes] not itself communicate a message of political protest.'

There could not be a clearer example of conduct as speech than the one here.

While going topless might not always be inherently expressive, it can be, the dissent continued. While not saying that the free-speech and equal-protection claims here would necessarily prevail in court, Rovner concluded that it was premature to dismiss them without "a full airing of the evidence"

A government can still ban conduct that is expressive, of course, if has an important and legitimate reason. Yet "while it is true that in our society female breasts have been sexualized as objects of desire while the breasts of men have not," there isn't a biological basis for the distinction, noted Rovner. The only functional difference in men's and women's breasts is that women have "the potential to provide milk to sustain a baby"—a purpose for which women are allowed to bare their breasts in public in Chicago.

Chicago's claim to be promoting "traditional moral norms and public order" here "boils down to a desire to perpetuate a stereotype that female breasts are primarily the objects of desire, and male breasts are not," the dissent continued, and we can't decide whether things pass constitutional muster based on stereotypes. "Any invocation of tradition and moral values in support of a law that facially discriminate among classes of people calls for a healthy dose of skepticism on our part, as historical norms are as likely to reflect longstanding class biases as they are reasonable distinctions. Whether out of reverence or fear of female breasts, Chicago's ordinance calls attention to and sexualizes the female form, and imposes a burden of public modesty on women alone."

Photo Credit: Splash News/Newscom

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  • Eidde||

    This issue requires further study...

  • SQRLSY One||

    "Boobs are not free speech".

    Ha! They speak to me!!!!

  • Quixote||

    That's not "speech," and clearly the argument that it's is a form of "expression" is rubbish from a so-called liberal judge. Who here would dare to assert, for example, that the blatantly illegal conduct involved in America's leading criminal "satire" case is somehow "expressive"? See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • Quixote||

    That's not "speech," and clearly the argument that it's is a form of "expression" is rubbish from a so-called liberal judge. Who here would dare to assert, for example, that the blatantly illegal conduct involved in America's leading criminal "satire" case is somehow "expressive"? See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • Quixote||

    Sorry for the duplicate reposting (some glitch with a "confirm resubmission") and for the typo ("is").

  • Principal Spittle||

    That's not a duplicate. It must be the thousandth time I've seen it.

    I've read through some of that blog now and while the subject is interesting, it's a bit of tedious reading. I think you would be better served spamming it to documentary producers.

  • Quixote||

    Spittle: thanks for joining my anti-Troll campaign. Tedium is certainly something that must not be allowed; I propose that we create a new law, to suppress, and harshly punish, any manifestation of it wherever it should be denounced. This would compliment a legislative enactment of Poe's law and further repressive actions against inappropriate forms of public nudity, wherever they should be identified and reported to the proper authorities.

  • Principal Spittle||

    I'm not sure if you are trolling or you think I'm the troll. Ill give you the benefit of the doubt and apologize for my post being terse and critical. A combination easily mistaken for trolling but I meant it sincerely and wanted it to be clear.
    The subject is interesting and drawing attention to it may be a worthy cause but your method and style get in the way.
    Try editing your prose for clarity by removing unnecessary convolution and cliche. Don't use big word for their own sake if they don't best fit and especially if you don't understand the correct use.
    Attempts at cleverness when bringing two subjects together can be fun for writers but when a reader sees the same "clever" turn to the same subject over and over again it can be...
    Tedious.

  • Quixote||

    Spittle: thank you again for joining my anti-Troll campaign. I hope that is clear enough, and free from unnecessary convolution. Together we will strike down the Trolls, and we can begin by moving for the rapid incarceration of the Dead Sea Troll, and for the reinstatement of each of the 21 (or was it 31) criminal convictions that were foolishly thrown out by so-called judges on "First Amendment" grounds. Allow me also to propose again that we work together to suppress tedium, in all of its forms, wherever we should find it present in the world.

  • Walter Peck||

    You get to study the guy on the left. Have fun!

  • Diane Reynolds (Paul.)||

    It's becoming increasingly difficult for me to reconcile feelings of outrage and lack of surprise.

  • Qsl||

    It is just setting up a milieu where flag burning, not standing for the national anthem, voting, etc. is outlawed as conduct instead of speech.

    Eventually some enterprising Ms. will get the Declaration of Independence tattooed to her chest and the whole thing will have to be revisited.

    Not siding with the city, but there is the issue of community standards with regards to indecency. How does the libertarian mantra square that circle of localized group rule vs. individual rights?

  • FreeToFear||

    Same way we square any other social norm - freedom of association. You have the choice to not interact with this person, shun them, boycott their business, what have you; for their speech/dress/lewdness. Community norms are thereby enforced in a distributed manner; the community will self-correct or change over time with different attitudes

  • Qsl||

    So how does this play out if the disapproved of dress is a hijab and the local group rule is in regards to immigration? You've actually given credence to the alt-rights' stance of cultural incompatibility as there is no way to maintain that freedom of association. Community norms simply become a numbers a game, and as the ethno-nationalist point out, they are on the losing side of that.

  • Mitsima||

    That might have made sense in your head, not so much when typed out loud.

  • Barbara Yarhead||

    Upvote

  • Qsl||

    I don't understand.

  • EscherEnigma||

    Broadly speaking, libertarians are "okay" with segregated neighborhoods and businesses, even when the segregation is reachable or religiously motivated, so long as it's not enforced by the government.

    For a (dystopian) idea of how this could work, I suggest you read Neal Stephenson's Snow Crash, paying attention to the enclaves.

    That this supports "alt-right" ideas is incidental.

  • Jay Dubya||

    I'm not sure what you mean by okay with here. If okay with means that broadly speaking libertarians don't think that the explicit threat of state violence is the best way to resolve a social trend toward segregation, or that the inclination to use state force to prevent segregation overlooks the role that the state itself plays in causing and perpetuating segregation (eg Jim Crowning the South or zoning regulations/housing 'assistance' in the North) than I agree with you. If you meant that libertarians are concerned that despite the good intentions behind government actions aimed at eliminating segregation such actions necessarily require a substantial role for the government in the private sphere that is guaranteed, over time, to be abused, than I agree with you.

    I suspect that's not what you meant. The alt right's xenophobic campaign of forced relocation for undocumented workers is anathema to the basic principles of libertarianism as argued by any of the scholars that spawned the movement - many of whom, like Hayek & Rand, were themselves immigrants. None of the justifications given for the violent kidnapping of millions can be reconciled w the NAP, limited government, or the belief that freedom of association & contract provides better results than state planning.

  • DarrenM||

    I'm waiting for orgies in the public park to be protected because it's considered "performance art".

  • jelabarre||

    If I were doing it, I'm not sure if it would be categorized as "comedy" or "tragedy".

  • Diane Reynolds (Paul.)||

    From left to right:

    Censorship: Agree
    Censorship: Disagree.

  • BestUsedCarSales||

    The guy on the left is also protesting the government shutting down his tours of graves of dead aliens.

  • Diane Reynolds (Paul.)||

    He's clearly protesting grooming.

  • ||

    Grooming is for fascists, man.

  • Citizen X - #6||

    I don't know why, but the fact that he doesn't have a mustache to go with his shitty, shameful beard fills me with an inchoate rage. WHY DID YOU SHAVE OFF THE MUSTACHE, YOU FUCK, WHAT THE FUCK IS WRONG WITH YOU

  • buybuydandavis||

    Milk so White Supremacist!

  • EscherEnigma||

    Personally, I don't like growing out my mustache because allergies and food. Proper application of wax can fix the "food" problem, but when this nose gets running there's no saving a mustache.

  • Diane Reynolds (Paul.)||

    I would assume it was Maggie Gyllenhaal.

  • MyCroftxXx||

    HA those sandbags on The Duce. classic!

  • ||

    From left to right:

    Censorship: Agree
    Censorship: Disagree.

    Look again.

    Censorship: Agree
    Censorship: John disagrees.
    Censorship: Disagree

  • Hugh Akston||

    And while Rovner notes that as a citizen, she doesn't "relish the prospect of seeing bare-chested women in public,"

    Ugh, can you even imagine? Gross.

  • Eidde||

    Which reminds me, the 2018 Judiciary Calendar is out soon, I hear Ruth Bader Ginsburg and Elena Kagan will be in it.

  • BYODB||

    There isn't enough bleach in the world to unsee something like that.

  • Citizen X - #6||

    [unzip]

  • GeneralWeygand||

    Nice...

  • Brandybuck||

    Boobs in public means that soon we'll get moobs in public too. We can't let that happen. Let's just stay off of the slippery slope.

  • DCoates||

    She should have just said that she identifies as a man - game, set, match; case closed.

  • Eidde||

    That's a serious point given today's legal climate.

  • Hugh Akston||

    The comment works fine where it is.

  • Azathoth!!||

    I suspect it might actually be a slip of the screen name.

    There IS already a commenter for whom an 'unzip' at the idea of RBG nude would not be out of character.

    Perhaps X and that commenter share a cranium?

  • Leo Kovalensky||

    *Opens comments section, pops some popcorn*

  • Eidde||

    Explain to your boss that this article isn't dirty because it's in a Kenyan newspaper and they're more relaxed over there.

  • Eidde||

    "It's the National Geographic people again! Quick, hide your smart phones and take off your bras!"

  • Rebel Scum||

    Free country. I can be naked if I want and I invite women to do the same. Fuck off, slaver.

    p.s. cut spending.

  • Juice||

    Free country.

    Where?

  • sharmota4zeb||

    1) A pare of well formed, muscular men's breasts is just arousing as a part of perky, double D women's breasts. This is one reason I go to the gym. We need more bisexual judges on the bench.


    2) The Quakers had a tradition of streaking in colonial Massachusetts. Maybe the folks at U Penn could start attending 3rd District Court hearings topless. Philadelphia could start a new revolution. :)

  • Eidde||

    Just don't tell them what happened to the Quakers.

  • ||

    1) A pare of well formed, muscular men's breasts is just arousing as a part of perky, double D women's breasts.

    If the bearer of said breasts has no actual breast tissue and a Y chromosome are they still breasts? Can we force Saggy on the left in the photo to identify as a woman from the 1st-12th thoracic vertebrae and make him put a shirt on?

  • Zeb||

    If they have nipples on them, then they are breasts.

  • ||

    So a woman with breast tissue but no nipples doesn't actually have breasts?

    Or is sharmota4zeb being intentionally misleading in his equating breasts with pecs?

  • Zeb||

    No, nipples are a sufficient, but not necessary condition for breasts. And now I'm just making shit up. But I do think it is technically correct to call men's chest protuberances "breasts". And lots of men do grow actual breast tissue, so the Y chromosome isn't a deciding factor either.

  • sharmota4zeb||

    I was thinking of definition 2, basically the front of the upper torso regardless of tissue content.

    Definitions of breasts:

    According to Webster
    1:either of the pair of mammary glands extending from the front of the chest in pubescent and adult human females and some other mammals; also :either of the analogous but rudimentary organs of the male chest especially when enlarged
    2 a :the fore or ventral part of the body between the neck and the abdomen
    b :the part of an article of clothing covering the breast
    3 :the seat of emotion and thought :bosom
    4 a :something (such as a front, swelling, or curving part) resembling a breast
    b :face

    According to Oxford -
    1 Either of the two soft, protruding organs on the upper front of a woman's body which secrete milk after childbirth.
    'Caroline crossed her arms over her breasts'
    as modifier 'breast cancer'
    More example sentencesSynonyms
    2A person's chest, especially when regarded as the seat of the emotions.
    'wild feelings of frustration were rising up in his breast'
    'her heart was hammering in her breast'

  • ||

    Right. I wouldn't equate a chicken breast with a woman's breast.

  • GeneralWeygand||

    Do you use a paring knife to get them well formed?

  • Zeb||

    Some pretty circular reasoning going on here.

    It's OK to ban women going topless because it's titillating and against social norms.

    It's titillating and against social norms because women generally don't go around topless in public, in part because of laws against it.

  • Eidde||

    The question is, did people at the time the relevant constitutional provisions were adopted recognize toplessness as one of Americans' traditional liberties?

    We could even stipulate that the people of that time *ought* to have been enlightened enough to believe in a right to expose their boobs.

    The narrower question, from the courts' point of view, was whether boobage was recognized among the "rights retained by the people" in 1791 (Ninth Amendment) or among the privileges and immunities of U. S. citizenship (14th Amendment).

    And if the answer is "no," can the courts just add to the list of rights, bearing in mind that the same flexibility which allows courts to add new, fashionable rights would allow them to abolish old, unfashionable rights.

  • Zeb||

    I'm not sure I buy that brand of "original intent". The constitution says what it says. If the people who wrote it didn't think of all of the potential consequences of the law they created, too bad for them. Isn't a lot of the point of the 9th amendment that the people writing the constitution and running government don't and can't provide an exhaustive list of all of the rights that people have?

  • Ship of Theseus||

    FFS, they don't create rights.

  • Eidde||

    I know, right?

  • EscherEnigma||

    I like how you try to invoke "original intent" but ignore that "original intent" didn't include Incorporation.

  • Eidde||

    I like how your resolve volumes of contentious debate into a single conclusory statement.

  • EscherEnigma||

    Yeah, it's almost like any discussion of "original intent" that doesn't begin and end with "the bill of Rights did not limit states, only the Fed" is nothing more then sophistic nonsense.

    You want to talk about the First Amendment and the state of Illinois? Then you don't care about original intent.

  • sharmota4zeb||

    Yeah, the ban on letting married women show their hair works the same way.

  • buybuydandavis||

    "titillating"

  • Juice||

    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.

    Isn't it blatantly obvious that it violates equal protection? One law for men and another for women?

    And because it is not "overwhelmingly apparent" that a woman walking down the city streets bare-chested "expresses a political message," the act does not qualify for First Amendment protection, they ruled.

    A message doesn't have to be political to be protected under the 1st amendment. It just has to be a message.

    But isn't it? It's still illegal for women to go topless in most places across America. Sure, there are nonpolitical reasons why a woman might momentarily do so: breastfeeding, sunbathing, going wild at Mardi Gras, some sort of psychotic break or, worse, performance art. Yet to walk calmly topless down the street for an extended period of time, in the company of other topless women, soliciting nothing, seems pretty inherently expressive to me.

    Going wild at Mardi Gras is also expressive, no?

  • Zeb||

    Yeah, nothing to say that expression must have meaningful content that other people care about to be protected.

  • BYODB||

    I think the applied reasoning basically boils down to equal protection is somehow subservient to social norms, which is as ludicrous of an assertion as I've ever heard. With that type of reasoning, slavery definitely should have stayed legal and the Civil Rights Act should never have happened.

    It looks like my theory that America is essentially reliving the 1950's just got another shred of evidence.

  • Mickey Rat||

    Equal protection does not apply to things thst are not equivalent. See appropriate "Life of Brian" scene.

  • Zeb||

    I think it is equivalent, though. Men can and often do grow breast tissue. Yet they can bare chests even if they have big old moobs. The only distinction I can is that social norms tell women to cover up. This is rather different from the case of men demanding the right to have babies since men can't, in fact, have babies.

  • Mickey Rat||

    Moobs and boobs are different things, created by different biological processes. The latter are secondary sex characteristics, the former are just a development of being a lardass.

  • Zeb||

    Actually, that's not entirely true. Men with excessive estrogen (whether natural or artificial) grow actual breast tissue, not just fat.

  • BYODB||

    Factually speaking men can lactate. The function of nipples is the same for both genders, it's merely more biologically associated with one sex.

    Functionally speaking, the structures are basically the same.

  • EscherEnigma||

    Throw in that a woman can get a double mastectomy, removing all beast tissue and nipples (often due to breast cancer), and *still* be required to cover up, and it becomes obvious that it really isn't about biology.

  • sharmota4zeb||

    If we require people to cover up sexual sex characteristics, men have to shave their beards or wear masks.

    What about armpit hair? That is a secondary sexual characteristic, but both men and women are allowed to show it.

  • buybuydandavis||

  • Diane Reynolds (Paul.)||

    Isn't it blatantly obvious that it violates equal protection? One law for men and another for women?

    It could be. I could see some novel interpretations of it though.

    One could argue that 'nudity' is what's banned. Since women and men traditionally have different bits that fall into the 'nudity' category- one might argue that the law isn't discriminating. But I admit it's a bit of a tortured and novel interpretation.

    I don't know if you can have a law which bans nudity. If topless, why not bottomless? Why is topless magically different than bottomless?

  • Zeb||

    I suppose one could argue that keeping genitals covered is more of a universal human norm. But that has similar problems. Not everyone cares about that.

    I'm not sure if the constitution really addresses this one. But from a pure liberty point of view, I can't think of any reason why any kind of nudity should be forbidden by law. It doesn't actually harm anyone. It might upset or annoy some people, but there is tons of shit that upsets and annoys me and I'm not out there trying to ban them.

  • ||

    But from a pure liberty point of view, I can't think of any reason why any kind of nudity should be forbidden by law. It doesn't actually harm anyone. It might upset or annoy some people, but there is tons of shit that upsets and annoys me and I'm not out there trying to ban them.

    Disagree. I've been around plenty of people who's personal hygiene I want no part of and rather than a litany of specific legislation regarding wiping one's own ass, how many times to shake, and where to dispose of personal napkins, am content to allow all this to be sufficiently covered by 'cover that shit up' social and quasi-legal norms.

  • ||

    I guess this doesn't drive at 'pure liberty' directly but would/could still require one to do some mental gymnastics to distinguish 'pure liberty' from 'practical and applied liberty'.

  • Zeb||

    And that's what I'm here for.

  • Zeb||

    But then you are punishing innocent people because some people are slobs. With that reasoning you can justify all kinds of bad laws. Alcohol should be prohibited because some people are bad drunks, etc.

    I really think social norms take care of all of this nicely and laws are unnecessary. Most people aren't going to start going around naked if the law changes tomorrow. Covering that shit up is a very strong social convention and I don't think it's about to change on any large scale. And if a few do, people can deal with it. At least be sure there is a problem to be solved before having a law that punishes essentially innocent behavior.

  • ||

    But then you are punishing innocent people because some people are slobs.

    This 'taking a freedom no one enjoys is punishing' sounds a bit like the 'not giving is taking' rhetoric. I understand that it's a 'positive/negative action/rights' switch but it still sounds like you're inviting a litany of very specific laws of varying popularity when a singular and more generally socially observed law would suffice.

  • Phos||

    Not some people. Everybody poops. And there are very few bidets in the US. Just because someone is not visibly a slob in terms of "after care" does not mean when they sit (which spreads the cheeks) then fecal matter if if not visibly evident will be an issue.

  • Zeb||

    But everyone isn't going to start going naked if it's legal. And there are plenty of legal ways to spread your poop germs around. I like to stick to the principle that you don't need a law, even against something that might be harmful, if there is no demonstrated problem that can't be solved by less coercive means.

  • marshaul||

    These are the most retarded arguments. "I have emotional reactions to things, I need mommy government to protect me from bad men and their germs!"

    It sounds exactly like the BS gun grabbers spew. "But without regulation people won't be safe! If we can stop the spread of just one poop germ, we have to try!"

    Grow the fuck up.

  • Diane Reynolds (Paul.)||

    Our society simply isn't ready to erase laws banning nudity. As long as exposing yourself to a woman is considered sexual assault, you have to draw a line. If we were able to get to a place where "sexual assault" and even harassment was confined to some sort of physical contact, then maybe.

    It's just like the gender issue. The state has to hold on to clear, bright line gender definitions, and codify them into law-- including codifying "transgender" as a category, because if they erase that from the law, then there's a whole lot of fiefdoms within the state itself that will collapse.

  • Zeb||

    Which all sounds like arguments against the laws to me, of course.

    This is an area where social norms do just fine on their own. There are lots of places where female toplessness is not illegal and the streets aren't full of naked titties. It's not a problem that needs a solution.

    When it comes to exposing genitals, I see your point. But those are also laws that punish innocent people, which I have a big problem with. Maybe the line should be drawn at public erections. Or something like "brandishing" like with firearms.

  • Phos||

    Like men have total control over that. This would make almost every teenage boy to be on the sex offenders list for life. Or just a guy who really needs to pee.

  • Zeb||

    I wasn't completely serious about that part.

    And again, you are assuming that legal nudity will mean that lots of people will do it. Which I don't think is the case. Just look at these protests. They are because it's illegal. If it was legal, most of these people would never have occasion to take their tits out in the middle of the city.

  • sharmota4zeb||

    In the UK, public nudity is legal but public indecency is not. The difference depends on body language.

  • Diane Reynolds (Paul.)||

    In the UK, public nudity is legal but public indecency is not. The difference depends on body language.

    Exactly, lord knows how they quantify that.

  • Diane Reynolds (Paul.)||

    Which all sounds like arguments against the laws to me, of course

    I agree. But for instance, I'm still waiting for someone to "identify as a woman" (and by that I don't mean go through the surgery, the hormone replacement stuff), but just go full AroGender and between the hours of 11:30am and 3:32pm, just decide "I'm a woman" and fill out paperwork to get a woman-owned business loan.

    According to the state, that would be fraud and would probably be prosecuted as such.

    When this whole thing started, I postulated it had the potential to destroy the identity politics industry by burning it down from the inside. I fear the ID politics industry has already caught onto that, and will go the way of just more state certification for everything. Not sure what the answer is, except to simply ask permission from the state on a case-by-case basis for everything.

  • operagost||

    "There are lots of places where female toplessness is not illegal and the streets aren't full of naked titties. It's not a problem that needs a solution."

    Conversely, I'm certain that there must be some problem that can be solved by filling the streets with naked titties. At least, I hope so.

  • EscherEnigma||

    You do know that until recently you could be a public nudist in San Francisco, right? They only passed their law against it in the last few years, and still allow a bunch of exceptions.

    For that matter, it's legal in New York City for a woman to go topless, and both men and women there can go fully naked on the street if it's party of a "performance".

    Y'all late acting like public nudity have been tried before in the US, and that's simply not the case.

  • Diane Reynolds (Paul.)||

    I'm not arguing that there are specific district-level exceptions or even laws allowing it. They have a nude parade thing here in Fremont and have had it for years. But it has to be on that day, in that neighborhood, at that time.

    If I go walking down any street fully nude, I'm going to be arrested.

    I suspect the same will occur in both New York and San Francisco. I'll bet money it's highly contextualized.

  • GeneralWeygand||

    I live in Fremont, Ca. There are no nude parades here...well...except from the shower to the bedroom

  • Diane Reynolds (Paul.)||

    The city opted to regulate it in a 2012 decision by requiring a police-issued parade permit for such displays of public nudity. Indeed, repeat offenders were criminalized. This decision received some national press coverage.

    So there's the line I'm talking about. I suspect it was criminalized because they (the city council) had trouble reconciling hippies dancing in a circle and just plain old creepy, problematic behavior.

    I think it would be interesting to find out in 2011, the famously progressive San Francisco city council decided an ordinance was needed.

    "We're a city that believes in freedom, and we've always believed in freedom and free expression," Supervisor Scott Wiener, who introduced the ordinance, told CNN affiliate KGO. "But taking your pants off at Castro and Market and displaying your genitals to everyone, that's not free expression."

    "But." Sounds like Scott Wiener has a big but.

  • EscherEnigma||

    What changed was Silicon Valley. It took until 2011 for the culture change to trickle down to the laws, but businesses wanting to look "professional" and "what about the children" is what did it in, not actual problems.

    But my point wasn't that it's not contextual (it is *now*, but it didn't used to be), it's that all the "practical concerns" are overblown. We don't have the laws because of hygiene, sex or disease. We have them because the Puritans thought ankles were scandalous.

  • sharmota4zeb||

    Exposing oneself to someone can be sexual assault, because it can be an unwanted sexual invitation. In New Jersey, looking at someone can be a form of sexual harassment, but we don't mandate that everyone wear eye glasses. Someone who walks around topless isn't sending any invitation. He or she is just topless. Someone who wears a shirt, approaches one person, and flashes his or her chest is sending an invitation.

  • Diane Reynolds (Paul.)||

    Your attempt to clarify what is or isn't harassment or assault leaves me even less confident in the system.

  • Jickerson||

    Exposing oneself to someone can be sexual assault, because it can be an unwanted sexual invitation.

    Calling that sexual assault is insane. Just don't accept the invitation and walk away. If it occurs on your property, you can, of course, kick them out. Problem solved.

  • Jickerson||

    It's unconstitutional for the government to ban nudity. It's just a matter of getting our treacherous courts to recognize that, as with many other things. Good luck!

  • Longtobefree||

    But the bottomless part is in fact gender neutral. Which is more evidence that the topless part is discriminatory.

  • Citizen X - #6||

    "Men aren't supposed to grow tits. And yet, there they are, atop your little paunch."

  • SQRLSY One||

    Well then we should be able to pass laws to get men to have their man-tits whacked OUT of there, surgically, in the name of "traditional moral norms"! WTF, "traditional moral norms" could be used to do just about anything!!!

    Are we a society of equality and law? Not really!

  • Domestic Dissident||

    Wow, not bad for a leftard; I give her a solid 8 out of 10. I suspect I don't want to know what she smells like though.

  • Zeb||

    I'm sure she feels the same way about you.

  • BYODB||

    Welp, it turns out that liberal Democrats in Chicago have more in common with their bible belt Republican counterparts than originally thought.


    I do need to wonder which set of laws would apply to a man-to-woman transgender with breast implants, though. I look forward to that court case, honestly, since the applied reasoning here would indicate that female breasts are the problem. If a man with breast implants doesn't count, why should a woman with breast implants be held to a different standard?


    God damn, even without the lunacy of transgender this case seems to be a pretty obvious case of unequal laws based purely upon the sex of the perp. Then again, our laws surrounding child custody and pregnancy would probably get caught up in the swirl as well, right? Naah, gotta protect those ladies who we all know don't have any autonomy or free will.


    Sheesh. This should go the Supreme Court, methinks. This type of thing is only going to become more common if they don't address it now.

  • ||

    If a man with breast implants doesn't count, why should a woman with breast implants be held to a different standard?

    Seems like this and the 'man boobs' issue can be solved with a penis proximity clause. If a pair of breasts is found within 2 ft. of a penis, it's legal.

    I can totally see America's bizzaro Sharia Law making it okay for women to go topless or even nude in public as long as they are accompanied by a man.

  • sharmota4zeb||

    Many transgender people only get the top surgery, because the bottom surgery is more complicated and tends to have worse results.

  • Finrod||

    Why stop there? Go full Gorean: it's legal for a woman to be naked in public if she's wearing a collar and a leash held by a man.

  • ||

    This isn't about gender. Chicago does not want to host Times Square.

  • ||

    This isn't about gender. Chicago does not want to host Times Square.

  • ||

    This isn't about gender. Chicago does not want to host Times Square.

  • Zeb||

    Well, tough titty for them.

  • Ship of Theseus||

    A comment so bad it needed to be posted thrice.

  • Just Say'n||

    What if the government allowed them to go topless, but required that they wear a sign explaining where you can go to buy a top if you are offended by someone who's topless?

    That might complicate the issue

  • gordo53||

    If womens' breasts weren't such a big deal, maybe the scum in Congress would stop groping them.

  • some guy||

    The obvious solution is to ban men from going topless too. For equality.

  • BestUsedCarSales||

    We need to ban all non-formal wear clothing in all public, and private, venues.

  • Mickey Rat||

    I would be more inclined to support Tagami's position if the movement she is supporting wants a sort of cultural androgyny on whether female breasts shoukd be considered a sex trait. Sorry, they can go pound sand as far as I am concerned.

  • marshaul||

    I would be more inclined to spend forcibly appropriated tax dollars to hide bare tits from Mickey Rat's sensitive gaze if.... oh, wait, no I wouldn't.

    Fuck off, slaver.

  • Eric Bana||

    Is nobody going to comment how it appears that the man in the photo has breasts (though not at all sightly)? The lady on the other hand... nice.

  • ||

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

    You can pry my Constitutional Right to Motorboat them from my cold dead cheeks.

  • Mickey Rat||

    That's likely to get you jail time, unless the possessor of the boobs is amenable to that activity by you.

  • Telcontar the Wanderer||

    You keep a pocket Constitution in your jowls? Don't the pages stick together after a while?

  • ||

    You keep a pocket Constitution in your jowls?

    The situation is easily avoided by finding a woman with a tattoo of the Constitution on her decolletage.

  • Telcontar the Wanderer||

    {genuflects}

  • Fist of Etiquette||

    The brick-and-mortar titty bar lobby really has a long reach.

  • Mickey Rat||

    Unless you ecoect the court to throw out all public nudity laws in context of a protest, the First Amendment violation is a nonstarter.

    If it was not, was Weinstein just exercising his 1st Amendment rights with those women?

  • Tony||

    Think how much we could accomplish if we weren't so preoccupied with the alleged moral holocaust caused by nudity and sex.

  • ||

    Why, we might be as productive as the French or the Greeks!

  • Tony||

    Life is for enjoying, not fattening the wallet of some 90 year-old walking testicle. The French have things pretty well figured out.

  • Telcontar the Wanderer||

    I guess that's why their suicide rate is higher than ours- the sans-cullottes are just tired of all the winning.

  • NoVaNick||

    I have spent time on Greek beaches going back to the 1980s when I was a teenager and pretty much all the women were topless. Was there last summer and I only saw one set of bare boobs-can't say the Greeks are any more productive though.

  • Diane Reynolds (Paul.)||

    Think how much we could accomplish if we weren't so preoccupied with the alleged moral holocaust caused by nudity and sex.

    +1 Louis CK.

  • ||

    Just to be clear, we all saw the woman's nipple in the picture and are avoiding talking about it, right?

  • Murray Rothtard||

    I missed it before actually. Kind of embarrassed now. Thanks for the tip!

  • Diane Reynolds (Paul.)||

    But thanks for just the tip.

  • Diane Reynolds (Paul.)||

    Whatever Tagami's political intent in going topless, she did so while expressing her views about the issue in other ways at the same time.

    Let's hope to Crom she wasn't agitating for more government regulation. Because wouldn't that be interesting.

  • misthiocracy||

    Up here in the Great White North, the Ontario Court of Appeal ruled way back in 1991 that female doesn't qualify as "indecent" under the law.

    Since then, there has been NO epidemic of female public toplessness. It's simply not someone most women EVER want to do.

    Of course, the US has a much warmer climate than we have up here...

  • misthiocracy||

    That first sentence SHOULD have read: "Up here in the Great White North, the Ontario Court of Appeal ruled way back in 1991 that female toplessness doesn't qualify as "indecent" under the law.

    I really wish Reason.com allowed us to edit comments. It's 2017, fer cryin' out loud!!!

    ;-)

  • Telcontar the Wanderer||

    "A government can still ban conduct that is expressive, of course, if has an important and legitimate reason."

    If it involves trespass or a threat of imminent trespass intended to modify behavior, yes. Otherwise no.

  • DarrenM||

    Public masturbation should also be considered free expression and protected by the First Amendment, as long as people clean up after themselves and there's no health issues, of course. We don't want to get ridiculous about it.

  • damikesc||

    It's funny that the same whackjob Leftists who whine about men "ogling" women also want to use women's tits to make a statement about something.

  • NoVaNick||

    This all seems consistent with Chicago's core prog belief of protecting people from themselves. If women walk around topless, they are probably more likely to be groped they think and what about boob inequality?

  • AndyWingall||

    At my former university the director of women's studies filed one lawsuit after another against the school claiming anything new constructed either resembled a penis or a vagina. Either way, according to the feminist director, they are offensive to women.

  • ||

    resembled a penis or a vagina. Either way, according to the feminist director, they are offensive to women.

    I guess perfectly flat was OK? No women could take offense to things that were unnaturally flat?

  • damikesc||

    They kept that whackjob employed...why?

  • NoVaNick||

    One word: T-E-N-U-R-E

  • NoVaNick||

    How the hell could a feminist possibly have a problem with anything that resembles a vagina? And how many buildings are donut shaped?

  • Finrod||

    This is part of the reason why degrees that end in Studies actually have negative value.

  • AndyWingall||

    They might as well ban camel toe while they're at it.

  • EscherEnigma||

    Hope she wins her case.

  • Diane Reynolds (Paul.)||

    Per our conversation above, if San Francisco is any measuring stick, she probably won't.

  • EscherEnigma||

    Probably not. But I can hope.

  • Unemployed Armenian Tranny||

    And because it is not "overwhelmingly apparent" that a woman walking down the city streets bare-chested "expresses a political message," the act does not qualify for First Amendment protection, they ruled.

    First, I was unaware that the First Amendment only protected "political speech". /s

    Also, by fining a person who is expressing disagrement with a law though willful violation, the state has itself politicized her speech, wether or not that was her intent.

  • ||

    Once again the courts sacrifice a right to politics. Once again the Constitution is ignored, specifically the Bill of Rights. Once again we have proof that a govt. that has no respect for rights or reason is an unlimited govt. Once again we are not protected by those who swear to protect us.

    So what are "we the people" going to do with this out-of-control monster? It's been 200+ years of violations. Isn't it past time to reevaluate the creation of a system of institutionalized aggression? Isn't an alternative/opposite political system of nonaggression worth trying? If it's worse, as the rulers claim, we can always go back. It works fine in the private sector. Capitalism gave us peace & prosperity greater than all other nations.

  • patskelley||

    Oh admit it, you're just trying to get support rallied for a million bare-chested-women march.

  • Telcontar the Wanderer||

    JOIN US

  • Finrod||

    You say that as if it's a bad thing.

  • AngelaM||

    The courts reasoning is convoluted at best. Money is symbolic speech which corporations (fictitious persons) have a First Amendment right to donate to political candidates in secret. T shirts with messages on them, even obscene ones can also be symbolic speech and may be worn in public but a living woman, a real person, may not bear her own breasts and invoke First Amendment protection. Why is money more symbolic than skin? The woman was at a protest march- her actions in going topless were in keeping with the goal of the protest. Male fixation on women's breasts should not be used to deprive women of their First Amendment rights- surely women should have the same rights as the court as granted to fictitious persons.

  • Telcontar the Wanderer||

    So you'd see labor unions, student organizations, book clubs and joint accounts between married couples prohibited from making donations too? They aren't "persons" either- just *groups of persons forming a collectively owned voluntary monetary cooperative*.

    Or maybe, just maybe, it isn't actually the meaningless "fictional person" talking point that bothers you, but rather the fact that the *group of persons forming a collectively owned voluntary monetary cooperative* in that case is operating on a *GASP* for-profit basis. Because of course a group of individual private donors would never donate to causes in line with their own interests. And a federal Ministry of Fairness would never allow special interests or personal biases to affect its evenhanded redistribution of the bourgeoisie's money...

  • Longtobefree||

    As for Tagami's equal-protection claim, Chicago argued that specifically prohibiting female but not male toplessness "does not actually classify by sex" since the reason more of women's bodies must be covered is "wholly attributable to the basic physiological differences between the sexes."

    Don't these troglodytes know that there is no longer any distinction possible between what used to be "the sexes"? There are as many sexes and/or genders as are desired by any who desire them. Who gets to decide the perceived gender of the person on the right and the person on the left? They could be two men, two women, one woman and one ze, etc to the tenth power.

    Any law pretending to be based on biological sex is clearly unenforceable, as well as unconstitutional.

  • AlmightyJB||

    Weird. I thought it had already been determined that was protected by the 1st.

  • Mike!||

    All the tits ever gotten out for this sort of thing are sad, mournful tits. It's in the public interest to keep the old socks full of beans tucked away. Get some top-flight cans in your march next time, watch the support for your cause uhhh... engorge.

  • buybuydandavis||

    rise
    swell
    explode

  • Josh Melton||

    Loved the dissenting opinion! I've spent some time overseas serving Uncle Sam and the Federal Reserve Bank that he has his mortgage through. I saw so many boobies, and wondered why... (having grown up in the greatest country in the world, where our rights, aka restrictions on what the government can take from us, are enshrined in the Constitution)....why was it that I grew up in the absence of all those boobies? Despite our goal to be secular, our morals have driven many of our laws. While this isn't always bad, it isn't always good. This woman's 14th amendment plea is prudent, regardless of the 1st amendment discussion, in my opinion.

  • buybuydandavis||

  • vek||

    This is a tough one for me... Personally I don't think chicks should go topless in most situations in public, it's classless, some times/places maybe, but not most situations. It is a sexualized thing in most cases, hence kind of weird. Should it be legal or illegal? The libertarian leanings in me say it should be fine... But then there's the slippery slope argument, and that it's a public space situation. Anything goes on private property, but truly public locations I think it's reasonable to have rules that are somewhat on the conservative side just so as to not offend people. I mean having to wear clothing certainly isn't going to offend anyone, whereas being buck ass naked would offend many.

    As for the slippery slope, if this is protected then what else is? Being completely naked in the middle of a park next to an elementary school? Shitting in public, provided you clean up after yourself of course! Beating off? Fucking a chick? Not one of those things has a real basis in being forbidden, it's all just social/moral norms that make the vast majority of the public think they should be kept in private. Tits are right on the line for me, but I definitely don't think railing some slut in a public park should be acceptable. So I dunno on this.

  • JunkScienceIsJunk||

    We're not even allowed to say the word "boobs" anymore as we learned from Brooke Baldwin last month, so it seems only fitting that women aren't allowed to show them either. Equal restrictions for all!

  • TJM||

    Appeal to tradition. How intellectually lazy of the 7th Circuit majority.

  • MikeP2||

    A ridiculous title...
    "Women's Boobs Are Not Free Speech, Says Federal Court
    Because 'traditional moral norms' trump civil liberties"

    ...when in your scribbles, you yourself acknowledge the difference between speech and non-speech.
    It is readily apparent that the BoR was written to protect 'speech', as many courts have confirmed. Utilizing nonspeech to shock the public or somehow expect that flashing emphasizes the political speech is childish and ignorant.

    Speech and print is how we convey complex messages and ideas as human beings. If we concede that political differences must involve complex discussion, then using boobs to convey a position is ridiculous at best. To hell with the childish BS. grow up. Flash in public all you want. But it's not 'political speech'

  • Finrod||

    What if a woman writes political speech on her breasts?

  • MaleMatters||

    "Chicago's ordinance calls attention to and sexualizes the female form, and imposes a burden of public modesty on women alone."

    Chicago wants to keep the rapacious, rapey male from raping. Same as with Muslim countries that impose jihabs. There it's thought the sight of an ankle or elbow will send men into a frothing frenzy.

    An insult to males and oppression of women.

  • vek||

    Well in all fairness, Muslim men seem to love them some rape, so maybe it is correct for their culture! LOL

  • Peter_H||

    By Rovner's logic, carrying an assault weapon in a pro-gun rights parade would be speech protected by the First Amendment even if illegal at that location. I can see this being used in an attempt to defend any activity in public.
    "but, officer I was protesting"

  • Think It Through||

    Whatever metaphor she was trying to express, it got lost in the dashes and general horribleness of this sentence: "but to declare, as a matter of law, that it can never be expressive is the quintessence of throwing out the free-expression baby with the non-expressive-conduct bath water," Judge Ilana Rovner wrote. Doesn't she have clerks to help her clean up that stuff?

  • Queen Screwup||

    I don't want to see your boobs. And if a guy has big man boobs he should be forced to put those away as well.

  • Telcontar the Wanderer||

    I don't want you to smoke marijuana or drink alcohol. It's your obligation as a fellow citizen of a democratic society. Hand them over.

  • Think It Through||

    Not the same thing, Telcontar.

    Queen began, "I don't want to"

    You began, "I don't want YOU to"

    All the difference.

  • Telcontar the Wanderer||

    "I don't want YOU to take your shirt off."

    "I don't want YOU to walk around near me naked."

    "I don't want YOU to use your breasts as a political statement."

    OR:

    "I don't want to know someone is smoking pot next door."

    "I don't want to have to see people drinking through a bar's window."

    "I don't want to have to worry about drunk drivers when I'm driving home from work a little late."

    Semantics, nothing more. Exactly the same thing.

  • JuanQPublic||

    So, you're basically saying that anything that makes people uncomfortable, ban it.

  • Longtobefree||

    She has a really nice smile.

  • Timberati||

    What if a non-opped trans woman bares her (or if you're in No. Carolina) his breasts in public?

  • C. S. P. Schofield||

    I think that the real issue with bare skin and sexy dress has been avoided for a long time. I don't really understand why. People have an unavoidable reaction to sexual signals. One that (we believe, anayway) is hardwired. Since society, by and large, wants males to NOT behave like rutting apes, society has a vested interest in keeping the sexual signaling that will drive them to do so under a,reasonable degree of control. For reasons that we don't entirely understand female breasts are anstrong sexual signal, and male ones aren't.

  • JuanQPublic||

    Considering that America is sexually insane, steeped in freakish blend of puritanical and anti-everything reactionism, it's not surprising that the average American would automatically consider a bare breast inherently "sexual" in nature.

  • GeneralWeygand||

    "it's not surprising that the average American would automatically consider a bare breast inherently "sexual" in nature.."

    How does men's junk end up in this discussion?

  • GeneralWeygand||

    I was really hoping ENB would show us her take on this.

    nudge nudge wink wink say no more

  • Entropy Drehmaschine Void||

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

    Well, shit, there goes MY weekend ...

  • Devastator||

    This is just Big Titty trying to keep a monopoly on breasts. An oligarchy of Well Endowed interests who don't want believe in Free Markets and Free Titties. It's a shame, people should be able to do what they want with their body as long as they're willing to live with the consequences. This is just more Republican judges who think it's fine to see someone gutted and strangled with said guts on network tv but some flappy happies make them turn red and angry and ban the boobs.

  • Johnny B||

    Thanks for not showing the belly on the guy with the man-boobs.

  • Paul E||

    Is Reason arguing that boobs are expression and so the government should not be telling people they can't show their boobs? By this logic than ANY act is expression and cannot be banned. If boobs are just expression, what about masturbation? "Hey, I'm just expressing myself." What about running around and screaming in peoples faces while they ride the bus, cool too right?

    I'm pretty sure at some point it's OK to say, you just can't do that in public.

  • JohnBinCT||

    Exactly. This lady broke the law, and her argument for why she should have been allowed to get away with it was "Oh, it was free speech".

    Believe me, I'm sympathetic to all of the arguments regarding the legality of toplessness, and could probably get on board with "Why should the government legislate our clothing choices anyway", but that doesn't mean that this lady shouldn't pay the fine for the law that she knowingly broke, in protest of that law.

    What if someone goes off and kills a bunch of people and says "Oh, I shouldn't go to jail because I was protesting the illegality of murder"? WIll you be so sympathetic, then?

    Enforce the laws that you have, and if you don't like the results, get them repealed. All selective-enforcement does is open the door to judicial abuse.

  • gphx||

    Women's boobs are not free speech. They're actually quite expensive. Ask the surgeon.

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