Free the Nipple, etc. v. City of Springfield, MO , 923 F.3d 508 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3467
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Free the Nipple - Springfield Residents Promoting Equality; Jessica Lawson;
Amber Hutchinson
lllllllllllllllllllllPlaintiffs - Appellants
v.
City of Springfield, Missouri
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: February 13, 2019
Filed: May 6, 2019
[Published]
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Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.
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PER CURIAM.
Free the Nipple - Springfield Residents Promoting Equality and two of its
members, Jessica Lawson and Amber Hutchison (collectively FTN), sued the City of
Springfield, alleging its indecent exposure ordinance violates the Fourteenth
Amendment’s Equal Protection Clause. The district court1 granted summary
judgment to the City. Free the Nipple - Springfield Residents Promoting Equal. v.
City of Springfield, 2017 WL 6815041 (W.D. Mo. Oct. 4, 2017). FTN appeals.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
In August 2015, Lawson and Hutchison organized a protest to raise awareness
about Springfield’s indecent exposure ordinance. The protestors were topless, except
for opaque black tape covering their nipples. A month later, the City Council enacted
a stricter indecent exposure ordinance. FTN sued the City to overturn it. In March
2016, the City repealed the September 2015 ordinance and replaced it with this
ordinance:
(a) No person shall engage in or commit any act of indecent exposure or
conduct in place open to public view.
(b) “Indecent exposure or conduct” shall include:
(1) The exposure of the male or female genitals, pubic area, or the
female breast with less than a fully opaque covering of any part
of the areola and nipple, or the showing of the covered male
genitals in a discernibly turgid state.
(c) Exceptions.
(1) This section shall not prohibit performances of adult
entertainment in compliance with section 10-7.
(2) This section shall not regulate nudity when the conduct of
being nude cannot constitutionally be prohibited by this section
1
The Honorable Beth Phillips, Chief Judge, United States District Court for the
Western District of Missouri.
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because it is otherwise protected by the United States
Constitution or Missouri Constitution.
(3) This section shall not prohibit a mother from breast-feeding
her child or expressing breast milk in any public or private
location where the mother and child are otherwise authorized to
be.
FTN filed an amended complaint, asserting constitutional claims against both
ordinances. The parties then agreed to a consent judgment on all counts relating to
the September 2015 ordinance. The only remaining claim is FTN’s challenge to the
March 2016 ordinance. It claims that the ordinance violates the Equal Protection
Clause by treating men and women differently—prohibiting women, but not men,
from exposing their areolas and nipples in public.2
FTN and the City moved for summary judgment on the equal protection
challenge. The district court granted summary judgment to the City. Relying on this
court’s decision in Ways v. City of Lincoln, 331 F.3d 596 (8th Cir. 2003), the district
court concluded that the gender-based classification was related to the City’s
legitimate interest in prohibiting nudity and promoting morality. FTN appeals,
arguing that the district court erred by misapplying the heightened scrutiny standard
2
Though no one has been arrested or prosecuted under the ordinance, FTN
claims the ordinance is unconstitutional as applied, as well as on its face. The City
claims the challenge is facial. “[T]he distinction between facial and as-applied
challenges is not so well defined that it has some automatic effect or that it must
always control the pleadings or disposition in every case involving a constitutional
challenge.” Citizens United v. FEC, 558 U.S. 310, 331 (2010). The important
inquiry is whether the “claim and the relief that would follow . . . reach beyond the
particular circumstances of these plaintiffs.” Doe v. Reed, 561 U.S. 186, 194 (2010).
The relief FTN seeks—a declaration that the entire ordinance is
unconstitutional—reaches beyond the particular circumstances of these plaintiffs.
FTN’s claim is facial. See id. See also Phelps-Roper v. Ricketts, 867 F.3d 883, 896
(8th Cir. 2017) (“If an as-applied challenge is successful, the statute may not be
applied to the challenger, but is otherwise enforceable.”).
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and ignoring admissible evidence showing that the law is based on impermissible
stereotypes.
II.
This court reviews de novo a grant of summary judgment, viewing the evidence
most favorably to the nonmoving party. Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is proper if there is no
genuine dispute of material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
The majority of courts considering equal protection challenges have upheld
similar laws prohibiting women, but not men, from exposing their breasts. See e.g.,
Tagami v. City of Chicago, 875 F.3d 375, 377, 379–80 (7th Cir. 2017); United States
v. Biocic, 928 F.2d 112, 115–16 (4th Cir. 1991); Craft v. Hodel, 683 F. Supp. 289,
299–301 (D. Mass. 1988); Tolbert v. City of Memphis, 568 F. Supp. 1285, 1290
(W.D. Tenn. 1983); State v. Lilley, 2019 WL 493721, at *3–5 (N.H. Feb. 8, 2019).
But see Free the Nipple - Fort Collins v. City of Fort Collins, 916 F.3d 792, 802–05
(10th Cir. 2019) (equal protection challenge to ordinance prohibiting women from
exposing nipple likely to succeed on merits); People v. Santorelli, 80 N.Y.2d 875,
882–83 (1992) (Titone, J., concurring) (statute prohibiting women from exposing
nipple violated Equal Protection Clause).
In Ways v. City of Lincoln, this court upheld an ordinance prohibiting “the
showing of the female breast with less than a fully opaque covering on any part of the
areola and nipple” against an equal protection challenge. Ways, 331 F.3d at 599.
Assuming, without deciding, that the ordinance was a gender-based classification,
this court applied heightened scrutiny, requiring the city to show that the “gender-
based classification[ ] serve[s] ‘important governmental objectives’ and that the
statute in question is ‘substantially related to the achievement of those objectives.’”
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Id. at 600, quoting United States v. Virginia, 518 U.S. 515, 533 (1996). This court
concluded that “the city’s interests in preventing the secondary adverse effects of
public nudity and protecting the order, morality, health, safety, and well-being of the
populace are important” and that the “ordinance is substantially related to those
objectives.” Id.
The ordinance at issue in this case is almost identical to the ordinance in Ways.3
FTN points to three differences to try to distinguish Ways. First, the ordinance here
does not contain an exception for children under the age of 12 like the ordinance in
Ways. Second, the ordinance here exempts adult entertainment. FTN contends that
this weakens the City’s interests. Third, unlike Ways, FTN produced evidence
suggesting there is no real difference between male and female nipples and that
gender stereotypes motivated the discriminatory treatment. These arguments are
unpersuasive. The City regulates adult entertainment in a separate ordinance. It still
has an interest in regulating nudity in public places. This court’s equal protection
analysis in Ways did not turn on the exceptions in the ordinance or the evidence (or
lack thereof) produced by the parties about the similarities or differences between
men and women’s breasts. The Ways equal protection analysis applies to the City’s
ordinance here.
Because Ways is not distinguishable, it controls this panel unless an intervening
Supreme Court decision supersedes it. United States v. Anderson, 771 F.3d 1064,
1066–67 (8th Cir. 2014) (“It is a cardinal rule in our circuit that one panel is bound
by the decision of a prior panel. This rule, however, does not apply when the earlier
panel decision is cast into doubt by an intervening Supreme Court decision.” (internal
citations omitted)). FTN argues that Lawrence v. Texas, 539 U.S. 558 (2003), and
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), undermine Ways.
3
The ordinance in this case requires “a fully opaque covering of any part of the
areola and nipple,” while the ordinance in Ways required “a fully opaque covering on
any part of the areola and nipple.” Ways, 331 F.3d at 599 (emphasis added).
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In Lawrence, the Supreme Court held that Texas’s sodomy law violated the
Due Process Clause because it “furthers no legitimate state interest which can justify
its intrusion into the personal and private life of the individual.” Lawrence, 539 U.S.
at 578. FTN contends that, after Lawrence, the City’s interest in public morality is
not a sufficient justification for the gender-based classification. See id. at 577 (“[T]he
fact that the governing majority in a State has traditionally viewed a particular
practice as immoral is not a sufficient reason for upholding a law prohibiting the
practice.” (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J.,
dissenting))); id. at 583 (“Moral disapproval of a group cannot be a legitimate
governmental interest under the Equal Protection Clause . . . .” (O’Connor, J.,
concurring)). The Ways court recognized a number of important governmental
interests, not just protecting morality. Ways, 331 F.3d at 600. Lawrence does not
cast doubt on these interests or supersede Ways.
In Morales-Santana, the Supreme Court struck down an immigration statute
under the Due Process Clause. Morales-Santana, 137 S. Ct. at 1686. To acquire
citizenship under the statute, a foreign-born child’s unwed mother had to live in the
United States only one year, whereas an unwed father had to live in the United States
for ten years. Id. at 1686–87. Finding that the gender-based classification relied on
outdated stereotypes about gender roles and did not serve important governmental
interests today, the Court held that the statute was unconstitutional. Id. at 1690–93,
1698. Contrary to FTN’s arguments, Morales-Santana did not modify the equal
protection analysis courts apply to gender-based classifications. Nor does its
reasoning undermine Ways. The statute in Morales-Santana did not pass heightened
scrutiny because it was based on “anachronistic” stereotypes about women’s domestic
roles. Id. at 1693. Neither Ways, nor this case, involves the same outdated gender
stereotypes about the roles of men and women.
This court must follow the holding in Ways. See Anderson, 771 F.3d at
1066–67. Springfield’s ordinance is substantially related to its important
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governmental interests in promoting public decency and proscribing public nudity to
protect morals, public order, health, and safety. See Ways, 331 F.3d at 600. The
district court properly granted summary judgment for the City.
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The judgment is affirmed.
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