Edge v. City of Everett, 291 F. Supp. 3d 1201

Background

Plaintiffs are owners and employees of "bikini barista" drive-through coffee stands who wear bikinis (described in the record as including pasties and G-strings) and assert that the clothing conveys messages of body acceptance, empowerment, and related views.
Everett enacted two ordinances: Ordinance No. 3559-17 (Citywide Ordinance) expanding "lewd conduct" definitions to prohibit exposure including the "bottom one-half of the anal cleft" and partial female-breast exposure; and Ordinance No. 3560-17 (Dress Code Ordinance) requiring quick-service employees to cover specified upper and lower body areas (e.g., breasts, top three inches of legs).
Violations carry criminal penalties for the Citywide Ordinance (jail and fines) and administrative penalties for the Dress Code Ordinance (fines and possible license revocation). The City asserted the ordinances aim to curb secondary effects (crime, prostitution, public sexual conduct).
Plaintiffs sued under the First Amendment, Equal Protection, Due Process, state constitutional provisions, and 42 U.S.C. § 1983, and moved for a preliminary injunction to block enforcement.
The court struck plaintiffs’ late-filed declaration evidence as inadmissible hearsay and applied the Winter test for preliminary injunctions. The City had agreed to suspend enforcement pending resolution.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness of ordinance language	Ordinances (e.g., "bottom one-half of the anal cleft") are not reasonably understandable and invite arbitrary enforcement	Language is clear or definable by ordinary dictionaries and past ordinance usage	Court: Likely void for vagueness under Fourteenth Amendment; plaintiffs likely to prevail on vagueness challenge
Whether clothing choice is expressive conduct	Wearing bikinis conveys particularized messages (body acceptance, empowerment) understood by viewers	The message is vague and primarily sexualized, not protected expression	Court: Plaintiffs' clothing is sufficiently communicative for First Amendment protection
Content neutrality of Dress Code Ordinance	Ordinance was designed to suppress expression the City finds distasteful	Ordinance is facially content neutral and aimed at secondary effects (crime, public safety)	Court: At this stage, ordinance treated as content neutral (subject to intermediate scrutiny), though some record remarks could suggest content-based motive
Whether the Dress Code survives intermediate scrutiny	Dress code is not narrowly tailored and suppresses core vehicle of plaintiffs' message; less restrictive alternatives exist	City has substantial interest in preventing secondary effects and relied on legislative record and crime data	Court: Does not satisfy intermediate scrutiny—City failed to show adequate evidence linking speech to harms and ordinance burdens substantially more speech than necessary; injunction warranted

Key Cases Cited

Winter v. Natural Res. Def. Council, 555 U.S. 7 (preliminary injunction factors)
Grayned v. City of Rockford, 408 U.S. 104 (void-for-vagueness standard)
Spence v. Washington, 418 U.S. 405 (expressive conduct test)
Hurley v. Irish-Am. Gay, Lesbian, and Bisexual Grp. of Boston, 515 U.S. 557 (broad protection for expressive conduct)
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (nudity and expressive conduct)
City of Erie v. Pap's A.M., 529 U.S. 277 (regulation of secondary effects and nude dancing)
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (clothing as protected expression)
Reed v. Town of Gilbert, 576 U.S. 155 (content-based vs content-neutral test)
Ward v. Rock Against Racism, 491 U.S. 781 (intermediate scrutiny for content-neutral regulations)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (secondary-effects doctrine)
City of Los Angeles v. Alameda Books, 535 U.S. 425 (evidence required to link speech to secondary effects)
World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (intermediate scrutiny standard in Ninth Circuit)
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (merger of public-interest and balance factors when government is a party)
Klein v. City of San Clemente, 584 F.3d 1196 (loss of First Amendment rights as irreparable harm)
Elrod v. Burns, 427 U.S. 347 (preliminary-injunction principle on loss of constitutional rights)