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Legal Learning: Bare-breast brouhaha

James Manahan

There is a lot of litigation in courts around the United States over this question: Can a woman be punished for uncovering her breasts in public?

The 10th Circuit Court of Appeals, the federal appeals court based in Denver, recently answered this question with a big "no." The case is called "Free the Nipple-Fort Collins v. City of Fort Collins."

The city has an ordinance that bars women, but not men, from baring their breasts in public below the top of the areola and nipple, except for girls younger than age 10 or women who are breastfeeding. The court ruled 2-1 in February that ordinances targeting a group based on gender is a violation of the equal protections clause of the U.S. Constitution.

The City of Fort Collins argued that the ordinance was justified because of the sexual nature of the female breast and because of concerns that bared breasts could lead to distracted driving and harm to children. But the majority judges pointed out that the nearby cities of Boulder and Denver allow female toplessness, and there is no evidence of harmful fallout.

The majority judges, Gregory Phillips and Mary Beck Briscoe, cited testimony by a psychology professor who said society's sexualization of women's breasts has engrained the stereotype that the primary purpose of women's breasts is sex, rather than feeding babies.

"But laws grounded in stereotypes about the way women are serve no important governmental interest," they ruled.

Circuit Judge Harris Hartz dissented. "The Supreme Court has been at the forefront of the march for gender equality. But it has never suggested that men and women are identical, or that the law cannot recognize their inherent differences," he wrote.

The New Hampshire Supreme Court answered the same question with a big "yes." Ginger Pierro was arrested for performing yoga at a beach in Laconia while topless. Two other women were arrested while going topless three days later to protest Pierro's arrest. The court upheld the convictions of all three women (voting 3-2 this February) for violating an ordinance that forbids "the showing of the female breast with less than a fully opaque covering of any part of the nipple."

The 7th Circuit Court of Appeals, based in Chicago, also ruled against a woman in 2017 in a similar case. Sonoku Tagami had participated in an annual "GoTopless Day" by walking about the city unclothed from the waist up. She applied "opaque" body paint to her bare breasts, but nonetheless was cited for public indecency.

The appellate court upheld her conviction, saying that "public indecency statutes were designed to protect morals and public order."

There are dozens of other recent decisions, and even an older case in Minnesota. In State v. Lee Ann Turner (1986), the Minnesota Court of Appeals ruled unanimously that "the female breasts, unlike male breasts, constitute an erogenous zone and are commonly associated with sexual arousal.

Common knowledge tells us that there is a real difference between the sexes with respect to breasts, which is reasonably related to the preservation of public decorum and morals."

In Virginia a couple of months ago, Michelle Renay Sutherland was arrested for indecent exposure during a rally at the state capital for the Equal Rights Amendment. Ironically, she was playing the part of the goddess Virtus, who is shown on the Virginia state flag and the state seal with her left breast exposed, while standing over Tyranny.

The judge ordered her held without bail, though he released her three days later after a national outpouring of outrage. Kevin Martingayle, a former president of the Virginia State Bar, stated that Sutherland's action was political speech and therefore "entitled to the highest free speech protection known to law."

After her release from jail, Sutherland said, "It was surreal to be standing in front of the judge and see the seal behind him. Like 6 feet in diameter."

As these cases progress through the courts, the issue may end up in the United States Supreme Court. I'm reminded of Justice Potter Stewart's attempt to define "obscenity" in a 1964 Supreme Court case: "I know it when I see it," he wrote.

Whether a woman's bare breast is obscene or not may come down to what a majority of the Supreme Court thinks.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota's Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at jimmanahan@gmail.com or jamesmanahan.com.