The Volokh Conspiracy
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First Amendment Protects Right to Use Nudity as Protest (There, a Pro-Trans Protest) in Public
So the Washington Supreme Court said yesterday, though other courts have disagreed.
[1.] Some states and municipalities ban public nudity generally, but some, like Washington, ban only nudity that is "lascivious," which is to say involving some sexual motivation (to oversimplify somewhat).
Does the First Amendment permit such bans when applied to expressive nudity? You can read the badly fractured decision of the Court in Barnes v. Glen Threatre, Inc. (1991) for yourselves and figure out what it means as a precedent. Five Justices voted to uphold a total ban on public nudity, even as to places where only consenting adults are present (such as strip clubs). But Justice Souter, whose vote was necessary to that result, stressed that nude dancing could be banned to prevent "secondary effects" such as "prostitution, sexual assault, and other criminal activity." It's not clear then how that holding would apply to cases where the nudity is not sexual and is unlikely to yield such effects.
[2.] Nudity and recalls of elected officials, together! Under Washington law, executive officials can be recalled if enough voters petition, and then if a majority of voters so vote. But there has to be some allegation of "some act or acts of malfeasance or misfeasance while in office, or … violat[ion of] his oath of office," and courts can reject recall grounds if they don't adequately allege such misconduct.
It's not like a normally scheduled election, where voters can throw the bums out for any reason they want. But it's also not like an impeachment process, which is supposed to involve a trial before legislators who decide whether an official's actions fit within the category of "high crimes and misdemeanors." Different states have different rules on the subject (see this 2021 post).
[3.] With that in mind, here are the facts from In the Matter of Recall of Lauser, decided yesterday by the Washington Supreme Court (majority opinion by Justice Charles Johnson):
On March 31, 2025, International Transgender Day of Visibility, Stevenson City Councilmember Lucy Lauser was protesting with a group of demonstrators outside Skamania County Courthouse. As part of the protest, Lauser exposed her breasts with the words "MY BODY IS NOT A SIN" written on her chest. She was approached by police officers who spoke with her regarding RCW 9A.88.010 (indecent exposure). Lauser advised she was expressing her First Amendment right and declined to cover her breasts. She was not arrested or charged.
City Councilmember Lauser is a transgender woman who was elected to Stevenson City Council in 2023. She is the first openly transgender person to serve in elected office in Stevenson. International Transgender Day of Visibility is an annual event dedicated to celebrating transgender people and raising awareness of discrimination faced by transgender people.
Respondent Kathleen Fitzgerald, a Stevenson resident, brought this recall petition to Skamania County Superior Court, alleging that Lauser has not honored her oath of office, which amounts to malfeasance and justifies a recall. Fitzgerald alleged that Lauser committed malfeasance by violating RCW 9A.88.010.
The Skamania County Superior Court found the recall charge factually and legally sufficient "based upon the court's determination that malfeasance … just means a commission of an unlawful act" for the purposes of committing the crime of indecent exposure. The court explained that the recall should move forward because the voters are the ultimate fact finders and must determine whether Lauser's conduct amounts to an open and obscene exposure in violation of RCW 9A.88.010….
[4.] The court concluded that this was an inadequate allegation to justify a recall under Washington law:
The court's role in the recall process is limited. The court "shall not consider the truth of the charges, but only their sufficiency." But courts do act as a gatekeeper to determine whether the charges are both factually and legally sufficient to support the recall. This is to ensure the recall process is not used to harass public officials or subject them to frivolous charges….
The recall petition is factually insufficient because it does not show Lauser intended to violate the law. Indecent exposure is any intentional "open and obscene exposure … likely to cause reasonable affront or alarm." Not all exposure is considered obscene. For example, the statute specifically states that breastfeeding is not considered indecent exposure. As stated in the police report, Lauser believed "obscene" related to the topic of "sexual gratification." She did not believe her exposure violated the law because it was an act of protest, which she did not believe was "obscene." Therefore, even if Lauser violated the law—and there is a strong argument she did not—it was not intentional. Rather, Lauser had a good faith belief that her conduct was lawful. This is well documented in the police report and Fitzgerald presents no facts to establish otherwise.
The recall petition is legally insufficient because it does not state with specificity facts to allege Lauser's conduct clearly violates RCW 9A.88.010. Our case law indicates that "obscene exposure" is a legal term of art, which relates to "'a lascivious exhibition of those private parts of the person which instinctive modesty, human decency, or common propriety require shall be customarily kept covered in the presence of others.'" Thus, indecent exposure is not mere nudity. It requires some underlying "lascivious" or sexual motivation to make it obscene. Here, Lauser was engaged in political protest on a day designated to celebrate transgender people. There was nothing lascivious about her conduct. Our case law is contrary to the superior court's statement that the voters should determine whether Lauser's conduct is "obscene" because "obscene exposure" is a legally defined term….
The charge that Lauser violated her oath of office is also factually and legally insufficient. A violation of oath of office means the "neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law." There is no factual basis on which Lauser violated a duty imposed by law. The petition merely alleges that by committing indecent exposure, Lauser committed malfeasance and violated her oath of office because she swore an oath to follow the law.
Further, Lauser was not acting in her official capacity during the protest at issue. She acted as a private citizen engaged in her right to protest. Because there is no relationship between Lauser's legal duties as a city council member and her participation in the protest, the charge of violation of oath of office is factually and legally insufficient….
[5.] And the court then added that Lauser's content wasn't just legal but constitutionally protected:
Both our state and the federal constitutions protect nude expression [citing O'Day v. King County (1988), a case that had dealt with nude entertainment "in public places of amusement," and not out on the street -EV]…. Because Lauser was engaged in expressive conduct, the statute should be construed to restrict only unprotected nude conduct to avoid a constitutional problem. "Protected expression" is conduct that (1) conveys a particularized message, and (2) the surrounding circumstances create a great likelihood that the message would be understood by those who viewed it. Here, Lauser's expressive conduct is constitutionally protected because she conveyed a particular message—protesting discrimination against transgender people—on an international day designated for that message. These surrounding circumstances create a great likelihood that her message would be understood.
The logic applies not just to nude display of breasts, but to nudity more generally as well. For a contrary view, see, e.g., Tagami v. City of Chicago (7th Cir. 2017) and Taub v. City & County of San Francisco (9th Cir. 2017) (not binding precedent).
[6.] For more on the question whether "laws prohibiting women, but not men, from exposing their breasts" violate the Equal Protection Clause because they discriminate based on sex, see here.
[7.] There's more interesting material in the separate opinions, available here.
Adrien G. Leavitt and La Rond Baker (ACLU of Washington) represent Lauser.
