Nov. 27, 2017 – A woman challenged the constitutionality of Chicago’s public nudity ordinance after receiving a ticket on “GoTopless Day 2014.” She was wearing body paint on her upper body, but no shirt. Recently, she lost an appeal.

In Tagami v. City of Chicago, the U.S. Court of Appeals for the Seventh Circuit ruled (2-1) that the public nudity ordinance – which bans women from exposing their breasts in public ­– does not violate free speech rights under the First Amendment.

The petitioner, Sonoko Tagami, also argued that the ordinance allows for a sex-based classification, since it only applies to women. The district court dismissed the case. The three-judge panel for the Seventh Circuit Court of Appeals affirmed, with one dissent.

Free Speech and Equal Protection

Tagami applied opaque body paint to her breasts and participated in “GoTopless Day,” an annual event of GoTopless Inc., which advocates for gender equality in public indecency laws. That view conflicts with Chicago’s public nudity ordinance.

But the majority was not persuaded that the ordinance – which expressly prohibits exposure of “any portion of the breast at or below the upper edge of the areola of any female person” – is facially unconstitutional on free speech or equal protection grounds.

First, the majority explained that the public nudity ordinance regulates conduct, not speech, and only some conduct falls into the free speech category. That is, the conduct “must comprehensively communicate its own message without additional speech.”

Tagami argued that her conduct is expressive on its own, as a protest against public nudity laws that include prohibitions specific to women. The majority did not agree.

“Whatever her subjective intent, Tagami’s public nudity did not itself communicate a message of public protest,” wrote Judge Diane Sykes. The amended complaint, Sykes noted, offered no facts that onlookers would know what she was protesting against.

Unlike flag burning, Judge Sykes noted, “it is not ‘overwhelmingly apparent’ that a woman’s act of baring her breasts in public expresses a political message.”

The majority also rejected Tagami’s argument that the city did not provide evidence that public nudity has harmful effects, concluding that no evidence was necessary.

“The Supreme Court has upheld a similar public-nudity ban … based on history and tradition, without requiring an evidentiary showing,” Judge Sykes wrote.

“Like other laws of this type, its essential purposes – promoting traditional moral norms and public order – are both self-evident and important enough to survive scrutiny. …”

The majority also discharged Tagami’s equal protection argument, acknowledging the ordinance imposes different prohibitions on women. But accounting for physiological differences between men and women does not, by itself, make the law unconstitutional, Judge Sykes noted.

Dissent

Judge Illana Rovner dissented. She noted the case was dismissed on the pleadings, thus depriving Tagami of an opportunity to present more facts to support her case. And she disagreed with the majority’s assessment that Tagami had no case to make.

“The question before us is not whether Tagami should prevail but whether she might prevail after a full development of the record,” Judge Rovner wrote. “Tagami has presented us with potentially viable First Amendment and sex discrimination claims. Like any other litigant with a viable case, she should be permitted to develop the record in support of her claims,” continued Rovner, noting the city must also justify the law.

The dissenting judge said the majority was wrong to conclude that Tagami’s conduct was not expressive enough for First Amendment protection.

“Tagami engaged in a 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,” Judge Rovner wrote. “It is difficult to imagine conduct more directly linked to the message than that in which Tagami engaged.”

Rovner noted that the ordinance perpetuates a stereotype “that female breasts are primarily the objects of desire, and male breasts are not,” just as previous laws stereotyped women as unable to perform important roles, such as women lawyers.

“I cannot say for certain what the ultimate outcome of this case would be after a full airing of the evidence, but to declare that Tagami’s conduct cannot be a protected expression of free speech under any circumstances is premature,” Judge Rovner wrote.