SEATTLE (CN) – Bikini baristas in Washington state must modify their signature skimpy outfits, the Ninth Circuit ruled Wednesday, finding a city-imposed dress code for restaurants is not a restriction on free speech.
The ruling vacates a federal judge’s preliminary injunction against enforcement of the dress code that requires quick-service facility employees to wear at least shorts and a tank top and restricting how much of a person’s anal cleft or woman’s breast can be publicly exposed.
The city of Everett approved two ordinances in 2017 mandating the dress code and restricting lewd conduct, saying the new rules were needed due to sexual crimes, including prostitution, occurring around the bikini barista stands.
A group of workers from the Hillbilly Hotties chain sued, claiming the ordinances violated their right to freedom of expression.
U.S. District Judge Marsha Pechman found the ordinances were likely void due to free speech violations and vagueness under the 14th Amendment and issued a preliminary injunction stopping enforcement while the case proceeded.
“The court finds that the citywide ordinance and the dress code ordinance are likely void for vagueness under the 14th Amendment. The term ‘bottom one-half of the anal cleft’ is not well-defined or reasonably understandable, and the ordinances otherwise fail to provide clear guidance and raise risks of arbitrary enforcement. The court finds that the dress code ordinance likely violates plaintiffs’ right to free expression under the First Amendment,” Pechman wrote.
On appeal, however, a three-judge Ninth Circuit panel found the baristas did not show a likelihood of success on the merits of their two 14th Amendment void-for-vagueness challenges – or on their First Amendment free expression claim – and vacated the injunction.
“Because wearing pasties and g-strings while working at quick-service facilities is not ‘expressive conduct’ within the meaning of the First Amendment, the dress code ordinance does not burden protected expression,” U.S. Circuit Judge Morgan Christen wrote in the unanimous opinion.
The panel also found freedom of speech protections for adult entertainers do not apply because “plaintiffs deny that they engage in nude dancing and erotic performances, thereby disavowing the First Amendment protections available for that conduct,” according to the ruling.
The ordinances were not unconstitutionally vague because “the meanings of both ‘anal’ and ‘cleft’ are easily discerned through recourse to a common dictionary,” Christen wrote.
“The lewd conduct ordinance uses the term ‘anal cleft’ in near proximity to a list of other intimate body parts. Viewing these facts together, we conclude that a person of ordinary intelligence reading the ordinance in its entirety will be adequately informed about what body areas cannot be exposed or displayed ‘in a public place or under circumstances where such act is likely to be observed by any member of the public.’”
The panel vacated and remanded, finding the district court’s application of intermediate scrutiny was inappropriate and Pechman abused her discretion.
U.S. Circuit Judge Sandra Ikuta and U.S. Court of International Trade Judge Jennifer Choe-Groves, sitting by designation, rounded out the panel. Barack Obama appointed Christen and Choe-Groves; George W. Bush appointed Ikuta.
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