Supposing you have a jurisdiction in which the majority of the population dresses extremely conservatively. Is there anything stopping the local government from passing a local ordinance forbidding anyone from dressing out of line with the “local custom”? (At this time, it would only be practical in a state in which local authorities set the standards - apparently this varies by state.)
For example, suppose a local municipality is comprised mostly of Muslims/Ultra-Orthodox Jews/Amish/whatever, could they pass a law saying that exposure of any skin other than faces or hands is “indecent exposure”? (I imagine it might have to apply to both men and women or some judges would toss it out on that basis.)
I assume to the extent that you defined the standard as being a purely religious matter, it could be struck down on First Amendment grounds. But that seems like a bit of a stretch to me. Religion influences much of common behavior and moral standards, but if something has become common standards of dress, for whatever reason, ISTM that it’s no longer a purely religious matter.
The Due Process Clause of the Fourteenth Amendment protects an individual liberty interest in a person’s appearance, and the First Amendment limits what a government may do to restrict expression by way of clothing choices.
But this is not a very settled area of law. There are a handful of cases striking down indecent exposure statutes for these reasons. E.g., DeWeese v. Town of Palm Beach, 812 F.2d 1365, 1367 (11th Cir. 1987) (striking down a regulation that prohibited shirtless male joggers as unreasonable).
I would imagine the porn laws would hold - what’s reasonable in the community. Which I would take to mean the state in general, not some small town.
Also, if the law is in any way based on religion, the First Amendment prohibition about state enforcing religious practices comes into play. Plus, equal protection under the law - if it dictates female dress code different from male.
But again, on such issues are many lawyers’ green fees paid for…
Following this line of reasoning : why not knock down any ordinances on females going topless? Precisely what logic makes females showing the exact same organ in public indecent? Before you say ‘think of the children’, do recall that this is the very mechanism that mothers feed their kids with…
In fact, a number of jurisdictions have IIRC ruled that topless females are not illegal - provided the display is “not sexually provocative”(!!!) I think was the rule. So topless beaches or sunbathing in the park, ok. Topless standing under a streetlight in the questionable area of town, not OK. (Still doesn’t account for the painted ladies in Times Square…)
In fact, when the court in Canada was mulling this issue, I think it was some women in Waterloo decided to hold a “topless march” to demand the right. When they saw the large contingent of (male) audience assembled to watch the march, they changed their minds.
Indeed. Such lawsuits are being heard in many states as we type.
The answer, of course, is a mix of history and culture, from the well-intentioned to the cruel and all the arbitrary in-between. A heaping dose of patriarchy. More than a smattering of sexual Puritanism.
Should a town be able to forbid fucking from the public square? Before you say ‘think of the children’, do recall that this is the very mechanism that mothers created their children with.
“As long as they don’t do it in the street and scare the horses…”
but that I think was the essence of the SCOTUS ruling way back when on porn. “reasonable community standards” so nothing too shocking, but not the most restrictive choice either.
Not disputing your point. But carrying forward from it …
The challenge with this line of logic is that sexual provocativity is also a community standard. AIUI in those Muslim countries that are big on burqas and such, all display of the female form is considered (excessively) sexually provocative.
In Victorian times, it was important to put little cloth socks on piano legs lest their curved carved shape give someone the vapors by reminding them of the oh-so-sensuous appearance of human ankles. In a world where every middle class family owned a piano this was major stuff.
They also insisted that books by male and female authors be shelved separately so the books wouldn’t be doing the ol’ hoochy coochy right there in your parlor creating scandal far and wide.
As Richard Parker said just above ultimately it’s all arbitrary holdovers from a rabidly bluenosed time compared to most people’s ideas today. Seeking logic or consistency within it is pointless.
Ultimately the OP’s question is political, not legal. The law and precedent at various levels and locales provide some vague pointers towards where the boundaries are probably sorta somewhere near at least for today.
IMO nobody is in a position to say how any given law in any given locale will or won’t work out.
To clarify the legal (constitutional) issue presented:
Is there a First Amendment right (free speech) to wear whatever I want (or not wear)?
Answer: no, so long as the thing you are wanting to wear isn’t conveying a message. Thus, in the Palm Beach case, the ordinance wasn’t a violation of the jogger’s free speech rights, since jogging topless isn’t the sort of “speech” that gets heightened scrutiny.
What right is violated then?
Answer: ALL actions by government have to be “rational”; that is, they have to be trying to address a legitimate government interest, and do so in a “rational” way. The trouble, as some posters above have highlighted, is identifying a legitimate governmental interest in keeping clothes on its residents. In the Palm Beach case, the court noted that, while certain regulations might have a legitimate interest, like the style of hair for police officers, there did not seem to be any legitimate governmental interest in keeping a male jogger’s shirt on. Obviously, other potential similar situations would have to be dealt with in the same way: what “interest” is the ordinance trying to further, and is that interest legitimate?
Now, the extent to which forcing citizens to wear clothing to avoid exposure of areas of the body considered sexual is a constant battleground. It seems to me that there are few, if any, other potential “legitimate” interests in forcing people to wear “x” item of clothing.
It’s a little more in flux than you suggest, DSYoungEsq.
There is an ongoing debate about the extent to which clothing choices are inherently expressive speech. In 2017, the weight of authority is a lot closer to that proposition than in 1987.
Also, while courts claim they are employing rational basis in many of these cases, they have also talked about due process rights to control your personal appearance. And even when they formally apply rational basis, it is very often rational basis with teeth–suggesting there is a degree of heightened scrutiny here, not that unlike the gay rights cases post-Lawrence and pre-Windsor.
ISTM that this would depend on local mores, however. If you’re part of a culture where male going topless is no big deal, then a court could easily find that there’s no legitimate government interest in forcing them to keep them on. But suppose the local culture is such that bare arms in that culture are as shocking as nudity in another culture. ISTM that the government has the same “legitimate interest” in one as the other.
And if you grant that, then I don’t see how free expression factors in. Because if you grant that free expression doesn’t go as far as full nudity, then if in another culture a much lesser standards is the cultural equivalent why would free expression come into play there?
I think the ultimate point is that the courts do not believe that government has the right to tell people that they have to follow a certain moral code regarding dress. There’s a very good quote from an opinion written by then-Judge Stevens (I believe) noting that this is tantamount to allowing government to do things like requiring someone wear a brown shirt, or requiring that they not wear a beard (both of which are examples from other countries that had bad connotations for “liberty”). And, as Richard Parker notes, it’s getting increasingly difficult to justify anti-nudity laws as a result of the jurisprudence on this. So, if you cannot even force people to keep their privates covered, it’s hard to see how you can force them to keep their ankles covered.
Are you aware of any Circuit Court of Appeals case which has stated that nakedness in and of itself (as opposed to, say, naked dancing) is protected speech? (I pay little attention to District Court opinions; the F.Supp. is useful only if you’re needing something to hang your client’s case on and you’re desperate; district judges will say the most interesting things in opinions at times. :dubious:) I’m not at home, so some of my usual source materials are not at my finger-tips.
