Topless woman with body painting ticketed in Chicago
The city on Wednesday filed a motion to dismiss a federal lawsuit over the right of women to go topless in Chicago, arguing that nudity is not protected expression under the Constitution and that “female breasts are considered erogenous in a way that male breasts are not.”
“The (Indecent Exposure or Dress) Ordinance is substantially related to the City’s important objectives in ensuring public safety and protecting unwilling audiences from exposure to nudity, which, consistent with current community standards, includes the exposure of female breasts,” city lawyers wrote in their response.
The lawsuit was filed in U.S. District Court in November on behalf of Sonoko Tagami, then 41, who was described as an ardent supporter of GoTopless, a nonprofit that “advocates for the right of women to appear bare-chested in public.“
Chicago police ticketed Tagami for indecent exposure last August during an event at Chicago's lakefront to promote the right of women to bare their breasts in public. An administrative law judge found her liable and ordered her to pay a $100 fine plus additional costs.
For several years, Tagami participated in GoTopless Day in Chicago, appearing in public with “opaque body paint” covering just enough of her breasts to comply with the city's decency law, her lawsuit stated.
A YouTube video of the August incident showed Tagami wearing a purple dress with the top pulled down and her breasts painted a pale white. A female Chicago police officer told Tagami in the video that she needed to pull up her dress or risk arrest. She eventually complied but was ticketed.
Tagami's suit claims the city's ordinance barring women from exposing “any portion of the breast at or below the upper edge of the areola” is unconstitutionally vague and a violation of free speech. The suit also alleges that because men are excluded from that portion of the ordinance, it violates rights to equal protection under the law.
Her lawyer, Kenneth Flaxman, said that Tagami thought she was complying with the ordinance by painting her chest because she had not been ticketed in previous years and that she was clearly participating in a protest at the time. He called the city’s stance “puritanical” and noted that women are allowed to breast-feed in public.
“She was making a statement that the ordinance should be repealed, that it is unfair to women and that women’s breasts are not dirty and shouldn’t have to be covered in public,” Flaxman said. “That if women want to be top-free, they should be allowed to be top-free.”
Flaxman said the city's ordinance is unclear and needs to be rewritten. As he reads it, he said it effectively bans clothing that many women wear every day, from low-cut dresses to tops exposing the sides of their breasts.
City lawyers, however, have argued that the ordinance is straightforward and that courts have repeatedly found that there is no First Amendment right to appear nude in public.
“Passersby would have no way of knowing whether she intended to make a political statement or merely to sunbathe,” according to the city’s filing, which further noted that courts have held that local governments “have the power to enact public indecency statutes, as regulations directed at public health, safety, and morality lie at the heart of traditional police powers.”
The city also moved to dismiss Tagami’s allegation that the ordinance unjustly targets women, arguing that it “realistically reflects the fact that the sexes are not similarly situated in certain circumstances.”