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Chicago's indecent exposure ordinance is quite specific, including a ban on the display of "any portion of the breast at or below the upper edge of the areola thereof of any female person" in public. Sonoku Tagami is not a fan of the law, and decided to celebrated "GoTopless Day 2014" by walking the streets of Chicago naked from the waist up, wearing only body paint on her breasts.
Tagami was ticketed for public indecency and challenged the charge all the way to the U.S. Seventh Circuit Court of Appeals, which last week sided with the city and upheld the topless ban as constitutional. But the real fireworks came in the back-and-forth between Judge Diane Sykes's majority and Judge Illana Rovner's dissent. Here's a look:
Tagami chose GoTopless Day as her day to protest the nudity ordinance, and for Judge Rovner, that was sufficient to deem her partial nudity political speech (rather than mere conduct) and thus make it harder for Chicago to punish:
"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. The ordinance prohibits bare (female) breasts; Tagami bared her breasts in protest."
But Judge Sykes wasn't convinced. "Whatever her subjective intent," she wrote, "Tagami's public nudity did not itself communicate a message of political protest." (Emphasis in original.) Therefore, in her view, the Chicago ordinance's "essential purposes -- promoting traditional moral norms and public order -- are both self-evident and important enough to survive scrutiny."
Tagami also challenged the Chicago ordinance as discriminatory, as the ban on breasts and areolas applies only to women. Again, Judge Sykes was not swayed:
"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."
And, again, Judge Rovner disagreed. "Whether out of reverence or fear of female breasts," she noted in her dissent, "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."
While Judge Rovner may not have ultimately sided with Tagami ("Do I relish the prospect of seeing bare-chested women in public?" she wrote, "As a private citizen, I surely do not. [I would give the same answer with respect to bare-chested men.]), but she didn't agree with the lower court's dismissal of her constitutional claims. "But I speak here strictly as a judge," she added, "with the responsibility to accord Tagami her constitutional rights."
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