Free the Nipple Springfield Residents Promoting Equal. v. City of Springfield
Opinion
*509
Free the Nipple - Springfield Residents Promoting Equality and two of its members, Jessica Lawson and Amber Hutchison (collectively FTN), sued the City of Springfield, alleging its indecent exposure ordinance violates the Fourteenth Amendment's Equal Protection Clause. The district court
1
granted summary judgment to the City.
Free the Nipple - Springfield Residents Promoting Equal. v. City of Springfield
,
I.
In August 2015, Lawson and Hutchison organized a protest to raise awareness about Springfield's indecent exposure ordinance. The protestors were topless, except for opaque black tape covering their nipples. A month later, the City Council enacted a stricter indecent exposure ordinance. FTN sued the City to overturn it. In March 2016, the City repealed the September 2015 ordinance and replaced it with this ordinance:
(a) No person shall engage in or commit any act of indecent exposure or conduct in place open to public view.
(b) "Indecent exposure or conduct" shall include:
(1) The exposure of the male or female genitals, pubic area, or the female breast with less than a fully opaque covering of any part of the areola and nipple, or the showing of the covered male genitals in a discernibly turgid state.
(c) Exceptions.
(1) This section shall not prohibit performances of adult entertainment in compliance with section 10-7.
(2) This section shall not regulate nudity when the conduct of being nude cannot constitutionally be prohibited by this section because it is otherwise protected by the United States Constitution or Missouri Constitution.
(3) This section shall not prohibit a mother from breast-feeding her child or expressing breast milk in any public or private location where the mother and child are otherwise authorized to be.
FTN filed an amended complaint, asserting constitutional claims against both ordinances. The parties then agreed to a consent judgment on all counts relating to the September 2015 ordinance. The only remaining claim is FTN's challenge to the March 2016 ordinance. It claims that the ordinance violates the Equal Protection Clause by treating men and women differently-prohibiting women, but not men, from exposing their areolas and nipples in public. 2
*510
FTN and the City moved for summary judgment on the equal protection challenge. The district court granted summary judgment to the City. Relying on this court's decision in
Ways v. City of Lincoln
,
II.
This court reviews de novo a grant of summary judgment, viewing the evidence most favorably to the nonmoving party.
Torgerson v. City of Rochester
,
The majority of courts considering equal protection challenges have upheld similar laws prohibiting women, but not men, from exposing their breasts.
See e.g.
,
Tagami v. City of Chicago
,
In
Ways v. City of Lincoln
, this court upheld an ordinance prohibiting "the showing of the female breast with less than a fully opaque covering on any part of the areola and nipple" against an equal protection challenge.
Ways
,
The ordinance at issue in this case is almost identical to the ordinance in Ways. 3 FTN points to three differences to try to distinguish Ways . First, the ordinance *511 here does not contain an exception for children under the age of 12 like the ordinance in Ways . Second, the ordinance here exempts adult entertainment. FTN contends that this weakens the City's interests. Third, unlike Ways , FTN produced evidence suggesting there is no real difference between male and female nipples and that gender stereotypes motivated the discriminatory treatment. These arguments are unpersuasive. The City regulates adult entertainment in a separate ordinance. It still has an interest in regulating nudity in public places. This court's equal protection analysis in Ways did not turn on the exceptions in the ordinance or the evidence (or lack thereof) produced by the parties about the similarities or differences between men and women's breasts. The Ways equal protection analysis applies to the City's ordinance here.
Because
Ways
is not distinguishable, it controls this panel unless an intervening Supreme Court decision supersedes it.
United States v. Anderson
,
In
Lawrence
, the Supreme Court held that Texas's sodomy law violated the Due Process Clause because it "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."
Lawrence
,
In
Morales-Santana
, the Supreme Court struck down an immigration statute under the Due Process Clause.
Morales-Santana
,
*512
This court must follow the holding in
Ways. See
Anderson
,
* * * * * * *
The judgment is affirmed.
The Honorable Beth Phillips, Chief Judge, United States District Court for the Western District of Missouri.
Though no one has been arrested or prosecuted under the ordinance, FTN claims the ordinance is unconstitutional as applied, as well as on its face. The City claims the challenge is facial. "[T]he distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings or disposition in every case involving a constitutional challenge."
Citizens United v. FEC
,
The ordinance in this case requires "a fully opaque covering
of
any part of the areola and nipple," while the ordinance in
Ways
required "a fully opaque covering
on
any part of the areola and nipple."
Ways
,
Reference
- Full Case Name
- FREE THE NIPPLE - SPRINGFIELD RESIDENTS PROMOTING EQUALITY; Jessica Lawson ; Amber Hutchison, Plaintiffs-Appellants v. CITY OF SPRINGFIELD, MISSOURI, Defendant-Appellee
- Cited By
- 10 cases
- Status
- Published