Free the Nipple v. City of Fort Collins
216 F. Supp. 3d 1258
D. Colo.2016Background
- Plaintiffs Brittiany Hoagland, Samantha Six, and Free the Nipple sued the City of Fort Collins challenging a municipal ordinance (Fort Collins Mun. Code § 17-142 / Ordinance No. 134) that prohibits females aged 10+ from exposing the breast below the top of the areola in public places. Plaintiffs seek injunctive and declaratory relief and fees under § 1988.
- Plaintiffs staged topless protests (covering nipples with opaque dressings) to protest the law as sex-discriminatory and expressive of the Free the Nipple movement; they intend to continue such protests.
- City Council revised the ordinance in October 2015 rather than repeal it; the revision retained a female-only prohibition while adding definitions and a breastfeeding exception.
- Council members’ statements and public emails referenced community morals, family values, preventing interference with others’ use of public spaces, and protecting children from pornography; plaintiffs allege these rationales reflect sex stereotypes.
- District court considered defendant’s Rule 12(b)(6) motion. The court dismissed the First Amendment claim with prejudice but denied dismissal of the federal Equal Protection claim and the claim under Colorado’s Equal Rights Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether topless public protest is protected expressive conduct under the First Amendment | Topless protest conveys a particularized message about sex-based double standards and is part of a recognized movement (Free the Nipple) | Plaintiffs’ nudity is not inherently expressive; any message requires explanatory speech and thus fails the Spence test | Court: Dismissed First Amendment claim with prejudice — conduct not shown likely to convey the message to viewers |
| Whether the ordinance violates the Fourteenth Amendment Equal Protection Clause (sex discrimination) | Ordinance perpetuates stereotypes by treating female breasts as sexual and criminalizes women based on archaic gender assumptions | Ordinance reflects real sex-based differences and is substantially related to important government interests (intermediate scrutiny) | Court: Denied motion to dismiss — plaintiffs adequately pleaded that ordinance may be grounded in unconstitutional stereotypes, stating a plausible equal protection claim |
| Whether Colorado’s Equal Rights Amendment claim should be dismissed | ERA claim invokes more exacting scrutiny and prohibits classifications based exclusively on sex | City urges the court to apply Colorado’s intermediate-scrutiny mode following federal analysis | Court: Denied dismissal of Colorado ERA claim (no need to decide standard because federal claim survives) |
| Appropriate pleading standard on 12(b)(6) | Plaintiffs must plausibly allege facts showing discrimination and expressiveness | City contends plaintiffs’ allegations are insufficient as a matter of law | Court: Applied Twombly/Iqbal plausibility standard; accepted equal protection pleading but found First Amendment allegations conclusory for the Spence second prong |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (establishes plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (applies plausibility standard; rejects conclusory allegations)
- Spence v. Washington, 418 U.S. 405 (test for when conduct is protected expressive speech)
- Texas v. Johnson, 491 U.S. 397 (discusses particularized-message requirement for expressive conduct)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (public nudity is not inherently expressive)
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (if message requires accompanying speech, conduct is less likely inherently expressive)
- U.S. v. Virginia, 518 U.S. 515 (equal protection: invalidating laws that perpetuate women’s inferiority)
- Miss. Univ. for Women v. Hogan, 458 U.S. 718 (courts must guard against laws reflecting archaic stereotypes)
- Michael M. v. Superior Court of Sonoma Cnty., 450 U.S. 464 (example of earlier case upholding sex-based classification)
- U.S. v. O’Brien, 391 U.S. 367 (framework for regulation of expressive conduct argued by defendant)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (time, place, and manner analysis referenced by defendant)
- Craft v. Hodel, 683 F. Supp. 289 (court rejecting that public nudity is inherently expressive)
- Free the Nipple—Springfield Residents Promoting Equal. v. City of Springfield, 153 F. Supp. 3d 1037 (district court decision addressing similar First and Fourteenth Amendment claims)