CHICAGO (CN) – A divided Seventh Circuit panel dismissed a woman’s appeal of Chicago’s public-nudity ordinance that bars women from exposing their breasts in public, but one judge said going bare-breasted could be considered a political protest.
Sonoku Tagami celebrated “GoTopless Day 2014” by walking the streets of Chicago naked from the waist up wearing opaque body paint on her bare breasts. The GoTopless movement advocates for a woman’s right to bare her breasts in public.
But the body paint was not enough to prevent her from getting a $100 ticket for violating the city’s ordinance prohibiting public nudity.
Tagami sued Chicago, claiming the ordinance is an unconstitutional violation of free speech.
But a federal judge dismissed her case, and the Seventh Circuit affirmed Wednesday in a 2-1 opinion.
“Whatever her subjective intent, Tagami’s public nudity did not itself communicate a message of political protest,” Judge Diane Sykes wrote for the majority. (Emphasis in original.)
The U.S. Supreme Court has upheld similar public nudity bans, and likewise, the Chicago ordinance’s “essential purposes – promoting traditional moral norms and public order – are both self-evident and important enough to survive scrutiny,” the ruling states.
Judge Sykes also rejected Tagami’s equal-protection claim that the law discriminates against women.
“The ordinance treats men and women alike by equally prohibiting the public exposure of the male and female body parts that are conventionally considered to be intimate, erogenous, and private. The list of intimate body parts is longer for women than men, but that’s wholly attributable to the basic physiological differences between the sexes,” the nine-page majority opinion states.
Judge Frank Easterbrook joined Judge Sykes’ opinion.
But Judge Illana Rovner dissented, disagreeing with many of Judge Sykes’ points and arguing that dismissal was premature.
“There could not be a clearer example of conduct as speech than the one here,” Judge Rovner wrote. “Tagami engaged in the paradigm of First Amendment speech – a public protest on public land in which the participants sought to change a law that, on its face, treats women differently than men. It is difficult to imagine conduct more directly linked to the message than that in which Tagami engaged.”
Judge Rovner also rejected the notion that the law should be upheld simply because in our society, women’s breasts are sexualized but men’s are not.
“Whether out of reverence or fear of female breasts, Chicago’s ordinance calls attention to and sexualizes the female form, and imposes a burden of public modesty on women alone, with ramifications that likely extend beyond the public way,” Judge Rovner said.
She noted that the only biological difference between men and women’s breasts is that women lactate to feed their infants, but Chicago permits women to expose their breasts when breastfeeding a child.
“Do I relish the prospect of seeing bare-chested women in public? As a private citizen, I surely do not. (I would give the same answer with respect to bare-chested men.) But I speak here strictly as a judge, with the responsibility to accord Tagami her constitutional rights,” Judge Rovner said. (Parentheses and emphasis in original.)