Constitutional Law

City's indecent exposure ordinance violates First Amendment, ACLU suit says

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Two breast-feeding moms have sued the city of Springfield, Missouri, asserting constitutional violations to the free speech, due process and equal protection rights over its indecent exposure ordinance.

Also represented by the American Civil Liberties Union of Missouri as a plaintiff in the federal civil rights suit is the advocacy group Free the Nipple - Springfield Residents Promoting Equality.

An amended complaint (PDF) filed Monday says the two women, Jessica Lawson and Amber Hutchison, participated in August protests organized by “Free the Nipple.” Both women and men were topless at the events, and some women wore pieces of tape over their nipples during at least one of the events.

Subsequently, the city of Springfield amended its indecent exposure ordinance. The ordinance now makes it a crime, among other conduct, to reveal “the female breast below a point immediately above the top of the areola, for the purpose of sexual arousal or gratification or which is likely to cause affront or alarm.”

Exceptions include “performances of adult entertainment” and “exposure of the female breast necessarily incident to breast-feeding an infant,” the complaint notes.

The ACLU takes exception to the use of the word “infant,” which apparently is not defined in the ordinance but is commonly understood, the complaint says, to mean a child of no more than 12 months old. Both Lawson and Hutchison are breast-feeding children over age 1.

Additionally, the ACLU says, the indecent exposure ordinance potentially targets women expressing breast milk for an infant who is not present and unfairly targets women for conduct that men are allowed to engage in.

The suit asserts claims for alleged violations of the First Amendment and the Fourteenth Amendment and says the city ordinance also conflicts with Missouri state law.

Springfield’s city attorney, Dan Wichmer, said he doubts that the ACLU has standing to pursue the case, because the ordinance hasn’t been enforced, the Associated Press reports. “We haven’t cited anybody,” he said.

Coincidentally, Mayor Bob Stephens had just sent a letter seeking committee review of the ordinance when he heard about the ACLU suit.

“I think my reaction was, ‘Oh boy, we’re going to have to spend more time on a goofy ordinance, and a goofy issue that will go away when the weather turns cold,’ ” he told KSPR. “I guarantee you in February, nobody will be parading on the square without their shirt on. We’re spending way too much time on it. Now, because of a lawsuit, we’re going to be spending way too much of taxpayer money on it, probably to be told we were wrong in passing the ordinance to start with.”

Hat tip: Springfield News-Leader.

See also: “Something unusual occurred when Holly Van Voast took off her shirt this spring: She wasn’t arrested” “Topless female photographer settles NYPD civil rights suit for $40,000” “Oregon Biker Beats Rap for Naked Ride; ‘Symbolic Protest’ is Protected, Judge Says” “Is a nude violinist akin to a naked bicyclist? Federal civil rights suit says yes, seeks $1M”

Updated Oct. 29 to clarify in headline that the case is over an indecent exposure ordinance.

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