Washington Bikini Baristas Lose 1st Amendment Challenge To City Ban, But Win On Equal Protection Cause Claims

One interpretation of the First Amendment has been found by the federal courts (both levels) to be far more interesting than meritorious. But the plaintiffs have at least made the court (and the city of Everett, Washington) admit that an ordinance expanded solely for the purpose of preventing baristas from wearing bikinis while serving, treats female workers differently than male workers, making it unconstitutional. (h/t Justin England)

The lawsuit filed by lead plaintiff Jovanna Edge raised several arguments in response to the city of Everett expanding its Lewd Conduct Ordinance in response to the appearance of bikini barista" stands. It was a significant expansion and one obviously tailored to prevent the businesses employing the plaintiffs from remaining in operation.

This is from the Washington federal court decision [PDF]:

The Lewd Conduct Ordinance expanded the definition of a lewd act to include an exposure of more than one-half of the part of the female breast located below the top of the areola," the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast" and created the new crime of Facilitating Lewd Conduct. The Dress Code Ordinance requires all employees, owners, and operators of Quick-Service Facilities" to wear clothing that covers the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals)."

You'll notice the words female breast" make more than one appearance. That's a problem. The rest of the language was also questioned by the federal court's first pass (which handed a win to the baristas), forcing the city to file a brief (lol I know) with the Ninth Circuit Appeals Court explaining how the law's wording was easily understood, especially phrases like one-half of the anal cleft," making it impossible to be interpreted as anything else than a logical government response to the appearance of bikini-clad coffee servers.

The Appeals Court reversed most of the lower court's decision, finding some merit in the city's claims that bikini barista businesses attracted violence and prostitution. It also found the somewhat novel interpretation of the First Amendment by the plaintiffs too novel to ratify and somewhat inapplicable when the baristas were running a business, not a protest against the patriarchy.

We stress that plaintiffs deny that they engage in nude dancing and erotic performances, thereby disavowing the First Amendment protections available for that conduct. See Barnes, 501 U.S. at 566. The outcome of this case turns on the plaintiffs' contention that the act of wearing almost no clothing while serving coffee in a retail establishment constitutes speech. 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.

Pretty much everything won at the lower level was reversed. However, the Ninth Circuit remanded the lawsuit with instructions to take another look at the lewdness ordinance to see whether it was the least constitutionally-intrusive option the city could deploy to address the problems of criminal activity and public propriety the city insisted could only be handled by regulating female breasts and up to one-half of the anal cleft.

The decision [PDF] on remand says No." There's a problem here and it's not necessarily the city's claims about preventing crimes. It's the city's decision to target only one gender with the expansion of the ordinance. The city saw nothing wrong with this, citing one (1) precedential ruling agreeing with its women be different from men" justification for focusing on female breasts.

The City of Everett argues that this Ordinance does not discriminate on the basis of gender because it prohibits both men and women from engaging in lewd conduct in public places, and it defines what constitutes lewd conduct by reference to both genders' most intimate body parts." To the City, the Ordinance's definition of lewd conduct to include exposure of the female but not male breast simply reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity." Id. (citing State v. Lilley, 204 A.3d 198, 208 (N.H. 2019)).

The court agrees with the plaintiff: one citation is not persuasive. As to protections against public lewdness (such as the exposed female breast), it agrees that normal community standards tend to treat exposed women's breasts as more inherently more lewd" than male breasts.

However, the city goes too far when it decides it can actually tell women how to dress when they're serving coffee - instructions that do not apply to male baristas. There's discrimination here, something that should have been obvious the moment the city rewrote public lewdness rules following the appearance of this business.

The record shows this Ordinance was passed in part to have an adverse impact on female workers at bikini barista stands. The Ordinance's ostensibly neutral classification is also an obvious pretext for discrimination based on the law's application. Plaintiffs' expert Dr. Roberts points out that the Dress Code Ordinance prohibits clothing typically worn by women rather than men, including mid-riff and scoop-back shirts, as well as bikinis. There is evidence in the record that the bikini barista profession, clearly a target of the Ordinance, is entirely or almost entirely female. It is difficult to imagine how this Ordinance would be equally applied to men and women in practice. It appears designed to ban not just pasties and g-strings" or bikinis, but a wide range of women's clothing.

The ordinance expansion targets women working for a singular form of business. This mandate will have to be policed, which means sooner or later police will be involved. Least intrusive methods are demanded in close cases like this. But this law change will result in plenty of intrusion.

As stated above, the record shows that this business model has been linked to at least some incidents of prostitution, lewd conduct, and sexual assault. However, it does not necessarily follow that the Dress Code Ordinance will further the City's goal of preventing these harms by establishing minimum dress requirements and making it easier to detect violations and hold owners accountable," as stated by the City. The means by which the City is attempting to reduce crime and lewd conduct-a dress code for drive-thrus that bans midriffs and scoop back shirts-is so broad as to veer from being substantially related" to just related." The Court is particularly swayed by Dr. Roberts' observations that this Ordinance poses an unreasonable risk of demeaning enforcement. Assuming the owners of bikini barista stands are unable or unwilling to enforce this dress code, at some point law enforcement will be asked to measure exposure of skin by some method. This encourage[s] a humiliating, intrusive, and demoralizing search on women, disempowering them and stripping them of their freedom."

The lower standard applied to the First Amendment claim doesn't work for the 14th Amendment claim. It all boils down to this when it comes to the Equal Protection Clause.

The restrictions are so detailed they effectively prescribe the clothes to be worn by women in quick service facilities.

The plaintiffs win on this claim... at least up until the inevitable appeal by the city that the best way to address criminal acts most often performed by people visiting these stands was to tell certain women in a single business how to dress.