by Thomas Essel
10-27-2015
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| What is the difference between the #HillbillyTaliban and the Islamic Taliban? Both hold sacred scriptures, assault weaposn and pose in front of a flag. |
The war over female equality in Springfield rages on. In August, a Free The Nipple rally on Park Central Square provoked the ire of Councilmember Justin Burnett. The following month, with Burnett’s backing, the city council loosed a salvo on the protesters, passing a new indecent exposure ordinance that further limits the amount of skin a woman can show while loosening restrictions on men. On Tuesday, the Free the Nipple protesters returned fire.
The ACLU, representing Free the Nipple as a group and Free the Nipple protesters Jessica Lawson and Amber Hutchinson, filed suit on Tuesday. Much of the media is painting this as a free speech lawsuit revolving around 1st Amendment issues of expression and assembly. In fact, there are three other claims being made against the city in addition to the 1st Amendment claim. The lawsuit is more complicated than that, and below is a guide to what the city is actually being sued for.
1. Count I: First Amendment
This is the obvious claim that the protesters have against the city of Springfield. According to the complaint, Section 78-222 (the indecent exposure ordinance) “impermissibly curtails Plaintiff’s free-speech rights.” The ordinance does so by limiting the ability of the women to expose their breasts during the rallies. The complaint argues that the original form of protest, exposing the breast with an opaque covering, was “intended to convey a particular message that is likely to be understood by those who view it.” The new ordinance criminalizes that form of expressive conduct. Count I further alleges that the new ordinance “is not narrowly tailored to serve a compelling government interest,” it “does not further a substantial government interest,” and the law’s “restriction on expressive conduct is greater than necessary to further any government interest.” In other words, the city of Springfield has no reason to actually try and halt the protesters’ speech.
Count I is based on the fact that the new indecent exposure ordinance was specifically designed to target the Free the Nipple rallies. Targeting a specific form of protest after-the-fact in an effort to prevent it from happening again is curtailing of freedom of speech, which violates the 1st Amendment. It is important to note that the August protests were in full compliance with the previous indecent exposure ordinance; nobody broke the law. The new ordinance is the government’s attempt to curtail speech they find disagreeable.
2. Count II: Due Process
This part of the complaint argues that the ordinance is arbitrary. The plaintiffs’ claim is that the law “fails to provide persons of ordinary intelligence a reasonable opportunity to understand when exposing the female breast below a point immediately above the top of the areola is prohibited and authorizes or encourages arbitrary and discriminatory enforcement.” It also claims the same in regards to breastfeeding infants.
The basis of this claim is that the ordinance requires that the exposure “cause affront or alarm.” Because those terms are vague, the ACLU is arguing that the criminality of protests and breastfeeding “will be determined by the subjective responses of third parties.” What alarms or affronts one, may not alarm or affront another. Any officer responding to an indecent exposure complaint cannot objectively determine if the complainer was actually alarmed or affronted; it would be up to the officer’s personal, subjective conviction. The breastfeeding issue is further complicated by the fact that “infant is widely understood to refer to a person aged 0-12 months.” Both Lawson and Hutchinson breastfeed children over that age. Due to the arbitrary nature of “affront or alarm” and the 3rd party subjective response, they cannot know if breastfeeding their children will violate the ordinance.
3. Count III: Equal Protection
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| Ward 2 Councilman Justin Burnett |
The argument here is that the indecent exposure ordinance violates the 14th Amendment because it criminalizes identical conduct for only one party. If a man and a woman were both to expose their breasts below the designated line, only the woman would suffer penalty of law. By allowing males more freedom with their bodies than females, the ordinance discriminates against women “by subjecting them to inferior legal status and criminalizing their expression based on their sex.”
The intentional targeting of women is evidenced by the fact that the new ordinance removes language found in the old ordinance that prevented men from displaying their “covered genitals in a discernibly turgid state.” In other words, men can now walk around with erections, so long as the penis is covered in some way. Imagine a sexually aroused man in sweatpants walking down a busy street. That scenario would most likely cause affront or alarm, but it is perfectly legal under the new ordinance. This means only affront or alarm cause by female body-parts is actually illegal.
The new ordinance also provides an exemption for women to go fully topless at adult entertainment venues, this means that women can expose their breasts in specific locations so long as it is explicitly for the sexual gratification of men. Of course, doing so during a protest where the purpose was not sexual gratification would result in a fine or jail. The complaint argues that one purpose of the ordinance “is to perpetuate stereotypes about girls and women and is a response to the council’s apparent view that the breasts of women are primarily objects of sexual desire.”
4. Count IV: Conflict with State Statute
This is an interesting issue that hasn’t received much press (if any). According to the complaint, Missouri law states two provisions: 1. A mother breastfeeding a child cannot be considered “public indecency.” 2. No municipality can “enact an ordinance prohibiting or restricting a mother from breast-feeding a child or expressing breast milk in a public or private location.” Due to the discrepancy between the definitions of child and infant, as well as the ambiguity issue described above, the city council may not even have had the authority to pass the law they passed.
The plaintiffs in the case are asking the court to grant an injunction to prevent the ordinance from being enforced while the issue is resolved in court. Furthermore, they wish the court to grant a permanent injunction (making the ordinance null and void), award nominal damages to the plaintiffs, award costs and attorney’s fees, and “such further relief as this Court finds just.”
Your move, Springfield.
About Thomas Essel
Thomas Essel is a secular activist and writer. He serves as the Content Manager for The Original Motto Project, is a regular contributor to the Patheos blog Danthropology, and his opinions have appeared in the Springfield News-Leader. Thomas lives in Springfield with his wife, two kids, and numerous cats.
You can contact Thomas at tcessel@gmail.com, or follow him on Twitter @TCEssel
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