Free the Nipple—Springfield Residents Promoting Equality v. City of Springfield
153 F. Supp. 3d 1037
W.D. Mo.2015Background
- FTN and individual plaintiffs challenge Springfield's New Ordinance regulating female breast exposure as unconstitutional, alleging First Amendment, due process, equal protection, and preemption claims.
- New Ordinance prohibits exposure of the female breast below a point above the areola for sexual arousal or to cause affront or alarm, with exceptions for breastfeeding and performances.
- Plaintiffs protested topless with nipples covered under the prior ordinance; City Council amended the ordinance in response to this conduct.
- Counts I–IV assert First Amendment, due process, equal protection, and preemption challenges to the New Ordinance.
- Court denies the motion to dismiss Counts I–III, dismisses Count IV without prejudice for lack of independent jurisdiction or meaningful state-law relief, and schedules briefing on plaintiffs’ preliminary injunction petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Lawson & Hutchison | Lawson & Hutchison have imminent threat of prosecution and self-censorship injury. | No actual prosecution or credible threat shown. | Lawson & Hutchison have standing. |
| Standing of FTN | FTN has standing through its members (Lawson & Hutchison) and germane organizational purpose. | FTN lacks individual members with standing. | FTN has organizational standing. |
| Supplemental jurisdiction over Count IV | Count IV preempts state law; should be adjudicated in federal court. | Count IV raises state-law issues; federal court should abstain. | Count IV dismissed without prejudice; declined supplemental jurisdiction. |
| Failure to state a claim (Counts I–III) | Ordinance restricts protected speech, due process vagueness, and gender-based classifications. | Counts I–III inadequately plead expressivity, vagueness, or rational basis concerns. | Counts I–III survive; Counts II and III analyzed but not dismissed on pleadings. |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (conduct can be protected speech when imbued with communicative value)
- Spence v. Washington, 418 U.S. 405 (1974) (test for expressive conduct and intended message)
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (standing can be shown by credible threat of enforcement without prior prosecution)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (injury in fact may occur without actual injury in certain disputes)
- Steffel v. Thompson, 415 U.S. 452 (1974) (intent to engage in conduct potentially affected by a statute with credible threat suffices for standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact, traceability, and redressability)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (due process vagueness concerns require notice and restraint in enforcement)
- Ways v. City of Lincoln, 331 F.3d 596 (2003) (public indecency statutes can satisfy equal protection if narrowly tailored to important objectives)