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Our Favorite Pastime

November 20, 2017

Consider this phrase: “Argued November 1, 2016 – Decided November 8, 2017.” This is not hypothetical. This is part of the heading from a ruling of the U.S. Court of Appeals for the Seventh Circuit. How should one interpret this?

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

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Consider this phrase: “Argued November 1, 2016 – Decided November 8, 2017.” This is not hypothetical. This is part of the heading from a ruling of the U.S. Court of Appeals for the Seventh Circuit. How should one interpret this?

There are several possibilities, but the most obvious one is that whatever this case is about, it must be important, complex, and in need of extended study and/or debate.

Or it may be that the three judges deciding the case – ages 60, 69, and 79 – have been writing as fast as they can. Since I’m older than one of those judges, I don’t buy that theory, but the 60-year-old may have been held back by the two codgers.

The third explanation – and the one I suspect is the real answer – is that the subject was so fascinating that they didn’t want to let it go.

The case is Tagami v. City of Chicago and the issue was whether a woman has a constitutional right to go topless in public.

Even though I’m a straight male, I firmly support the right of women to go topless whenever they want. It’s only fair and just that women have control over their own bodies.

Despite this obvious conclusion, the City of Chicago (or at least its police department) decided to arrest a woman participating in a Go Topless Day in 2014 for violating an ordinance prohibiting public nudity.

Once again, consider the dates: A woman has been litigating her right to nudity and, no doubt, spending money on court costs, for more than three years. This was after she’d been sentenced to a $100 fine plus $50 in court costs.

And the City of Chicago has been litigating its right to issue a ticket for nudity and spending money on court costs for more than three years. Again – over a $100 fine and $50 in court costs.

Who says litigation isn’t America’s favorite pastime?

Not surprisingly, when you’ve got a case so contentious and affecting so many people, the three-judge panel split two to one, with the majority ruling that “(i)t is not ‘overwhelmingly apparent’ that a woman’s act of baring her breasts in public expresses a political message.”

There are other messages, though.

I’m really hoping this case makes it to the Supreme Court.

More First Amendment. The Second Circuit also recently had a unique First Amendment issue to deal with in a case called Grief v. Quay. Here’s the key portion of the ruling: “(W)e conclude that the district court erred in deciding that Grief’s belief regarding stuffed animals could not plausibly constitute a religious belief.”

That’s right – years of litigation over whether a prisoner could keep his stuffed animals. Stuffed animals that the prisoner says are his spirit guides.

Why not just let him have his toys? Does somebody think the spirit guides are going to help this guy escape?

It’s clear that the plaintiff, who is representing himself, should be using another argument: Toy removal is cruel and unusual punishment.

The guy’s already been grounded.

The Takeaway. I know what some of you are thinking – if we don’t respond in court to people who want to go topless or worship teddy bears, society could be overrun with half-naked furries. We can’t just let them get away with these crimes.

Personally, I’d disagree with that. Having a few more viewable breasts and a few more weird guys preoccupied with their toys isn’t the worst thing that could happen to society.

(Insert your own Donald Trump or other disliked politician joke here to make a comparison to something a lot worse.)

But if these are indeed menaces to society, isn’t it enough punishment to arrest them, try them once and then ignore them?

Then all that legal talent and litigation funding could be put to better use – like investigating that politician you hate.

It’s all about priorities.

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