Free the Nipple Wins Injunction in Ft. Collins Anti-Nudity Case

DENVER, Colo.—AVN doesn't have access to all of the judicial decisions handed down in the history of the United States, but we're pretty sure that no court has ever found that any person has been harmed, mentally or physically, from having seen a bare breast or vulva—and that record seems on the verge of being upheld by at least two members of the Tenth Circuit U.S. Court of Appeals in a case challenging the constitutionality of an anti-female-nudity ordinance in Fort Collins, Colorado.A couple of early points: We say "anti-female-nudity ordinance" because no one in Fort Collins government seems to care if men walk around anywhere in the city shirtless, nipples exposed. The ordinance under challenge says only that "No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple" in public. And as for "on the verge of being upheld," that refers to the injunction against enforcement of the ordinance issued by the district court judge in the case, and while the majority of the Tenth Circuit panel appears to find much merit in the plaintiffs' legal case, it's only being called now to rule on whether the injunction was improperly granted, as the city claims. However, that legal limitation didn't stop the appellate judges from weighing in on the entire concept of female vs. male public nudity.Also noteworthy is the fact that if a female were to be found guilty under the Fort Collins ordinance, she could be fined as much as $2,650 and/or imprisoned for up to 180 days. Who knew a bare tit was that "valuable"?However, to begin with, the opinion by Judge Gregory A. Phillips for himself and Judge Mary Beck Briscoe discussed the legal criteria for upholding an ordinary injunction, which are, "(1) that she’s 'substantially likely to succeed on the merits,' (2) that she’ll 'suffer irreparable injury' if the court denies the injunction, (3) that her 'threatened injury' (without the injunction) outweighs the opposing party’s under the injunction, and (4) that the injunction isn’t 'adverse to the public interest.'"In this case, that burden's easily met. The Equal Protection clause of the Fourteenth Amendment makes it clear that men and women are to be treated equally under the law, no matter what their nipples look like, and if a woman were convicted under the Ft. Collins ordinance and had to spend 180 days in jail, that's time she'll never get back—and hence is an "irreparable injury." Further, as noted above, no court has likely ever found that a person has been harmed by seeing a bare female breast, so injuncting the ordinance doesn't injure anyone and in general isn't "adverse to the public interest."But the appeals court also found that the district court's injunction even meets the criteria for a "disfavored preliminary injunction," in that granting it 1) didn't require the city to do anything different than it had been doing; 2) didn't change the status quo of the law prior to the ordinance being passed; and 3) essentially gave the plaintiffs what they wanted from their lawsuit, at least until the case were to come to trial.Of course, the main point under consideration regarding the injunction was whether the plaintiffs—the activist organization Free the Nipple and two individuals—were "substantially likely" to win at trial, so that's what the appellate opinion spent most of its time on. For instance, it noted that "equal protection" means that "all persons similarly situated should be treated alike," and that if they are not to be so treated, that distinction has to be "rationally related to a legitimate government purpose"—which forcing women's bodies to be covered clearly isn't. The panel's majority noted that deciding whether there is a "legitimate government purpose" to the ordinance requires "intermediate scrutiny," which would require the government to prove that "the law or policy being challenged furthers an important government interest by means that are substantially related to that interest." [Citations removed here and below]Of course, the city claimed that because female and male breasts look different, keeping people from seeing female ones is (somehow) an "important governmental objective," but the majority quickly shot down that notion."Any law premised on 'generalizations about "the way women are"'—or the way men are—will fail constitutional scrutiny because it serves no important governmental objective," Judge Phillips wrote.Then the city argued that "the inherently sexual nature of the female breast, as opposed to the male breast, raises 'myriad concerns' with 'permitting adult females to go topless in public without restriction'," including "that female toplessness could disrupt public order, lead to distracted driving, and endanger children." The majority made short work of that one as well, noting that females are allowed to breastfeed in public, that nearby cities including Denver and Boulder permit female toplessness, and that, "We’re left, as the district court was, to suspect that the City’s professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects. ... But laws grounded in stereotypes about the way women are serve no important governmental interest."And as for "disrupting public order" and "leading to distracted driving," Judge Phillips noted "the justification for a gender-based classification 'must be genuine, not hypothesized,' and 'it must not rely on overbroad generalizations.' Here, we suspect that enacting the public-nudity ordinance had less to do with the City’s professed objectives and more to do with the sex-object stereotype that the district court described." However, the panel noted that other Circuits had come to the opposite conclusion, but stated, "As we interpret the arc of the Court’s equal-protection jurisprudence, ours is the constitutionally sound result."As for the "irreparable harm" the ordinance could cause the plaintiffs, the majority found that, "What makes an injury 'irreparable' is the inadequacy of, and the difficulty of calculating, a monetary remedy after a full trial. Any deprivation of any constitutional right fits that bill." Similarly, in "balancing the harms" done by the ordinance to the plaintiffs, or the harms to the city without the ordinance in place, the panel rightly recognized that the city's "harm" would be the challenge to accepted sexual morality."When a constitutional right hangs in the balance, though, 'even a temporary loss' usually trumps any harm to the defendant," Judge Phillips wrote. "In this case, according to the district court, the Plaintiffs met their third-factor burden because the deprivation of their right to equal protection outweighed the stakes for the City, which the court defined as the public’s interest in morality." And as for the injunction allegedly "not being in the public interest," the majority made short work of that as well: "[A]s the district court wrote, it’s 'always in the public interest to prevent the violation of a party’s constitutional rights.' On appeal, the City disputes that the public-nudity ordinance is unconstitutional, but it cites no law casting doubt on the public’s interest in preserving constitutional rights."While Judge Phillips' opinion seems incontrovertible, the panel's third judge, Harris L. Hartz, dissented—and that dissent seems clearly based on that judge's view of religious morality. After noting that many courts at many levels and in many jurisdictions have treated women and men differently on legal issues, his most revealing statement comes in the middle of his comments."The invalidated laws were predicated on stereotypes under which every member of a gender was treated as having a talent, capacity, or preference that most members of the gender have or were perceived as having," Judge Hartz wrote. "The Fort Collins indecency ordinance (the Ordinance) is not such a law. It is part of a long tradition of laws prohibiting public indecency—the public display of portions of the anatomy that are perceived as particularly erotic or serve an excretory function."These laws may be justified as reducing or preventing antisocial behavior caused by indecent exposure: offensive behavior ranging from assault to corruption of youth to simply distraction from productive activity," he continued. "The Ordinance does not discriminate against women on the basis of any overbroad generalization about their perceived 'talents, capacities, or preferences.' To the extent it distinguishes between the sexes, it is based on inherent biological, morphological differences between them. Those differences are not stereotypes. They are not statistical differences, they are not matters of degree. They are differences in anatomical structure that reflect the unique biological roles played by males and females."In other words, the Fourteenth Amendment doesn't really mean what it says about equality—at least not when seeing a bare breast might make some man horny. It's Stone Age thinking, and hopefully, if this case ever makes it to the U.S. Supreme Court, the justices will see the logic in the majority's analysis and strike down not only Ft. Collins' ordinance but all the other similar ones around the country.Pictured: Former U.S. Attorney General John Ashcroft and the Department of Justice's "Spirit of Justice" statue whose breasts he ordered covered when speaking in front of it. (Images courtesy of Wikipedia and Wikimedia Commons.)