Sykes, Circuit Judge.
Sonoku Tagami celebrated "GoTopless Day 2014" by walking around the streets of Chicago naked from the waist up, though wearing "opaque" body paint on her bare breasts. She was cited for violating a Chicago ordinance prohibiting public nudity. She responded with this lawsuit alleging that the ordinance is unconstitutional. She contends that banning women from exposing their breasts in public violates the First Amendment's guarantee of freedom of speech and amounts to an impermissible sex-based classification in violation of the Fourteenth Amendment's Equal Protection Clause. The district court dismissed the suit and we affirm.
Tagami supports GoTopless, Inc., a non-profit organization that advocates for a woman's right to bare her breasts in public. On August 24, 2014, she participated in the group's annual "GoTopless Day" by walking about the City of Chicago unclothed from the waist up. Before doing so, she applied "opaque" body paint to her bare breasts. That did not suffice to avoid the predictable citation for public indecency. A police officer ticketed her for violating the city's public-nudity ordinance, which states that
CHICAGO, ILL., CODE § 8-8-080 (emphasis added).
Tagami contested the citation before a hearing officer but was found guilty of violating the public-nudity ordinance and ordered to pay a $100 fine plus $50 in administrative costs. Tagami then sued the City alleging that the ordinance is facially unconstitutional. As relevant here, she claims that the ordinance violates the First Amendment's guarantee of freedom of speech and discriminates on the basis of sex in violation of the Fourteenth Amendment's Equal Protection Clause.
The City moved to dismiss the original complaint for failure to state a claim. See FED. R. CIV. P. 12(b)(6). The district judge dismissed the equal-protection claim but allowed the First Amendment claim to proceed. Tagami then amended her complaint, reasserting both claims. The City again moved to dismiss, and the judge again dismissed the equal-protection claim. As for the repleaded First Amendment claim, the judge treated the City's motion as a request for reconsideration and reversed her previous ruling, dismissing that claim as well. Final judgment for the City followed and Tagami appealed.
We review the judge's dismissal order de novo, accepting Tagami's factual allegations as true and drawing reasonable inferences in her favor. United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016).
Taking the First Amendment claim first, we begin with an obvious point:
"Being in a state of nudity is not an inherently expressive condition." City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (internal quotation marks omitted). Tagami nevertheless contends that her public nudity, viewed in context, warrants First Amendment protection as expressive conduct. She alleged in her amended complaint that she bared her breasts in public places around Chicago as part of GoTopless Day, an event intended to "protest ... laws that prevent women from appearing bare-chested in public," which the group and its supporters consider archaic. Whatever her subjective intent, Tagami's public nudity did not itself communicate a message of political protest. Indeed, her amended complaint drives this point home by alleging that she appeared topless in public "while expressing [her] views that women, like men, should not be prohibited from appearing bare-chested in public." The presence of additional explanatory speech "is strong evidence that the conduct ... is not so inherently expressive that it warrants [First Amendment] protection." Rumsfeld, 547 U.S. at 66, 126 S.Ct. 1297.
Nor does the amended complaint offer any facts from which it might reasonably be inferred that onlookers would have readily understood that this public display of nudity was actually a political protest against the City's public-indecency ordinance. On this point the allegations here are not remotely analogous to the circumstances at issue in Johnson, the flag-burning case. There the Court held that "[t]he expressive, overtly political nature of th[e] conduct was both intentional and overwhelmingly apparent." Johnson, 491 U.S. at 406, 109 S.Ct. 2533. It is not "overwhelmingly apparent" that a woman's act of baring her breasts in public expresses a political message.
Even if we assume for the sake of argument that Tagami's nudity was communicative enough to warrant some degree of First Amendment protection, the district judge was right to dismiss this claim. "[W]hen `speech' and `nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms." O'Brien, 391 U.S. at 376, 88 S.Ct. 1673. Under the O'Brien test, a law survives First Amendment scrutiny if
Foxxxy Ladyz Adult World, Inc. v. Village of Dix, 779 F.3d 706, 712 (7th Cir. 2015) (describing O'Brien's intermediate standard of scrutiny).
Tagami limits her argument to the second step of the O'Brien framework, challenging only the City's justification for banning public nudity. To defend the ordinance against this facial challenge, the City invokes its general interest in preserving health, safety, and traditional moral norms. More particularly, the City argues that the ordinance protects unwilling members of the public — especially children — from unwanted exposure to nudity.
Tagami insists that the City must produce evidence to support its justification for this law, so dismissal at the pleadings stage was improper. More specifically, she argues that the City has the burden to show, with evidence, that the ordinance is justified as a means to prevent the harmful secondary effects of public displays of nudity.
Not so — at least not in this context.
Id. (citation omitted). Put more succinctly, the interest at stake here "is societal disapproval of nudity in public places and among strangers," id. at 572, 111 S.Ct. 2456, so the prohibition "is not a means to some greater end, but an end in itself," id.
Chicago's ordinance has a similar pedigree. It has existed in one form or another for decades. Like other laws of this type, its essential purposes — promoting traditional moral norms and public order — are both self-evident and important enough to survive scrutiny under the O'Brien test. Id. at 569, 111 S.Ct. 2456.
Moving now to the equal-protection claim, the City advances a threshold argument that its public-nudity ordinance does not actually classify by sex, so the Equal Protection Clause is not implicated at all. As the City sees it, the ordinance treats
This strikes us as a justification for this classification rather than an argument that no sex-based classification is at work here at all. On its face, the ordinance plainly does impose different rules for women and men. It prohibits public exposure of "the breast at or below the upper edge of the areola thereof of any female person." CHICAGO, ILL., CODE § 8-8-080 (emphasis added).
Still, a law that classifies on the basis of sex is compatible with the Equal Protection Clause if the classification serves important governmental objectives and the "discriminatory means employed are substantially related to the achievement of those objectives." United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (quotation marks omitted). This intermediate level of judicial scrutiny recognizes that sex "has never been rejected as an impermissible classification in all instances." Rostker v. Goldberg, 453 U.S. 57, 69 n.7, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) (quotation marks omitted). "Physical differences between men and women ... are enduring: [T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Virginia, 518 U.S. at 533, 116 S.Ct. 2264 (alterations in original) (quotation marks omitted).
The intermediate-scrutiny test for sex-based legal classifications is not meaningfully different than the O'Brien test for laws that burden expressive conduct. As we've just explained, Chicago's public-nudity ordinance easily survives review under O'Brien. Because the tests are materially identical, it follows that the City's ordinance withstands equal-protection challenge.
Rovner, Circuit Judge, dissenting.
As in many First Amendment cases, the speech at issue here is that which offends many, makes many others uncomfortable, and may seem trivial and unimportant to most. The First Amendment protects not just the speech which a majority of people find persuasive and worthwhile, but to the contrary, its protections are most essential when the speech is that with which most take offense. See, e.g., Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). This is the caveat that must be emphasized beyond all else in this case.
A court may not dismiss a case on the pleadings unless it appears "beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Manning v. Miller, 355 F.3d 1028, 1031 (7th Cir. 2004). We must always be mindful that when we dismiss a case on the pleadings, we deprive the parties of their day in court to marshal evidence to make the most persuasive argument for their rights. And when presented with a free speech claim, we must take care not to allow our own personal assessment of the worth of the speech to dictate whether the claim should be dismissed. In dismissing this case on the pleadings, the majority has declared that there is no set of facts under which Sonoku Tagami's participation in an annual "Go Topless Day" protest — an event sponsored by a 501(c)(3) group advocating for gender equality in indecency ordinances — could be viewed as expressive
The majority nakedly declares that "Tagami's public nudity did not itself communicate a message of political protest," but rather required accompanying explanation. But the fact that Tagami included some explanation with her conduct does not necessitate a finding that her message would not have been understood otherwise. Accompanying explanations do not turn expressive conduct into non-expressive conduct. Otherwise wearing a black armband would constitute expressive conduct, but wearing an armband and shouting "No more war!" would not. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Nor can one evaluate the expressive content of public nudity divorced from the context in which it occurs. It is akin to taking a picture of a recent women's march protest and enlarging it again and again to isolate a single marcher wearing a pink hat and concluding from the picture of a single hat-wearing marcher alone that the conduct is not expressive because the wearing of a hat "d[oes] not itself communicate a message of political protest." See Majority at 378.
There could not be a clearer example of conduct as speech than the one here. Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to earn money, streaking across a football field to appear on television, or even nursing a baby (conduct that is exempted from the reach of the ordinance). Her conduct had but one purpose — to engage in a political protest challenging the City's ordinance on indecent exposure. 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. (To be more precise, Tagami apparently intended to comply with, but push the limits of the ordinance by painting her breasts with opaque paint.) The baring of breasts uniquely conveyed the intensity of the expression of
Although Tagami's conduct clearly was expressive, the City might still have a legitimate reason for prohibiting it. The majority concludes that the purpose of "promoting traditional moral norms and public order — are both self-evident and important enough to survive scrutiny under the O'Brien test." Majority at 379. It is true that in our society female breasts have been sexualized as objects of desire while the breasts of men have not. There is no biological basis for this distinction. The primary functional difference between the female breast and the male breast is not a sexual one, but rather, just the opposite — the fact that the former has the potential to provide milk to sustain a baby, while the latter does not. The City's claim therefore boils down to a desire to perpetuate a stereotype that female breasts are primarily the objects of desire, and male breasts are not. As a district court reasoned in a similar case, we should not "accept the notion ... that we should continue a stereotypical distinction `rightly or wrongly,' or that something passes constitutional muster because it has historically been a part of `our culture.'" Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 237 F.Supp.3d 1126, 1133 (D. Colo. 2017). Had we done so we would not now have women lawyers, women jurors, women estate administrators or women military cadets. Id. I cannot say for certain what the ultimate outcome in this case would be after a full airing of the evidence, but to declare that Tagami's conduct cannot be a protected expression of free speech under any circumstances is premature.
Whether Tagami's conduct was sufficiently expressive and whether the City will be able to demonstrate a sufficient justification under O'Brien for banning the showing of the female breast below the upper edge of the areola are not matters that can be resolved on a motion to dismiss. And it is that aspect and only that aspect — the prematurity of this decision — from which I dissent.
Nor should Tagami's equal protection claim have been dismissed at the pleading stage. As my colleagues rightly acknowledge, Chicago's ordinance proscribing "indecent exposure or dress" on its face treats men and women differently, making it an offense only for women to bare their breasts in public. That differential treatment
Do I relish the prospect of seeing bare-chested women in public? As a private citizen, I surely do not. (I would give the
The question before us is not whether Tagami should prevail but whether she might prevail after a full development of the record. Tagami has presented us with potentially viable First Amendment and sex discrimination claims. Like any other litigant with a viable case, she should be permitted to develop the record in support of her claims, and the City in turn should be required to present evidence to justify its actions.
I respectfully dissent.