SEATTLE (CN) – A group of bikini baristas asked a federal judge Tuesday to stop a city’s enforcement of two ordinances banning bikinis on restaurant workers and restricting how much of a woman’s breast can be exposed, claiming the new rules violate their civil rights.
The Everett City Council in Washington state approved the ordinances in August that require employees of “quick-service” restaurants to wear at least shorts and a tank top. A second ordinance that bans the exposure of female breasts was amended to say anyone who “permits, encourages, or causes to be committed” the wearing of a bikini that violates the law is also now a criminal under Everett law.
Seven bikini baristas and a stand owner sued the city in September claiming violation of their rights of expression, due process privacy.
The city, just north of Seattle, agreed not to implement the ordinances until U.S. District Judge Marsha Pechman rules on the injunction request.
Derek Newman of the firm Newman & Du Wors, representing the baristas, told Pechman on Tuesday the case is about “how far the city of Everett can go to control what women wear at work.”
He said the baristas have a First Amendment right to expression and feel empowerment “fearlessly serving coffee.”
Newman spoke about several baristas who showed meaningful tattoos and scars at work in an attempt to engage in dialog with customers, and said requiring them to cover up would stifle that speech.
“The city should regulate crime, not clothing,” he said.
Newman attacked Everett’s justification for the new laws as a way to stop prostitution, exploitation of minors and lewd activity allegedly associated with the bikini barista stands.
He said there are already laws that deal with the illegal secondary effects the city claims to be targeting, and banning bikinis will not pass strict scrutiny.
Strict scrutiny is a standard of judicial review used to determine if the government has a compelling interest in restricting constitutional rights.
Newman cited Texas v. Johnson, a Supreme Court decision that overturned a state ban on burning the U.S. flag.
Texas already had laws that regulated breaching of the peace, the state’s cited reason for enacting the ban, and the high court found these laws were less restrictive than banning expression, Newman said.
“Here is no different,” he said.
Pechman asked why she needed to reach a constitutional determination when she might just overturn the ordinances for vagueness.
“There’s no definition of anal cleft,” Pechman said, referring to the ordinance’s language that restricts exposure of the “bottom one-half of the anal cleft.” She noted if one did a Google search for “anal cleft” one would only find a definition of “anal” or “cleft.”
“We’d like you to reach a conclusion that this law violates the First Amendment, but there’s no need to do so,” Newman replied.
Everett’s attorney Sarah Johnson, with Pacifica Law Group, said the bikini ban is part of a “multifaceted” approach to crime. This drew an immediate question from Pechman.
“Is the city trying to stop what baristas are doing or trying to stop what men are doing in response to the actions of the baristas?” the judge asked.
Johnson said some baristas, stand owners and customers had been involved in criminal conduct, and added the business model for the stands is “problematic.”
Pechman asked: “Is it what people wear or is it the business model?” She posed some hypothetical solutions, including a ban on tipping at the stands, installing cameras and taking down customer license plate numbers.
Johnson countered: “The job of the court is not to second-guess what the city has done.”
Pechman continued to grill Johnson about the city’s reasoning behind the ban.
“Why do you need to regulate dress if what you’re after is the business model or the response to the dress?” the judge asked.
Johnson said there is “very clear” evidence the business model has harmful secondary effects, and the city has a substantial interest in regulating the baristas conduct.
“This isn’t a case about the First Amendment,” she said.
Pechman said she would rule on the injunction by the end of next week.
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