Jovanna Edge v. City of Everett
929 F.3d 657
9th Cir.2019Background
- "Bikini barista" drive-through coffee stands in Everett prompted police investigations after numerous complaints of lewd conduct, customer sexual contact, underage employment, and prostitution-related activity.
- Everett amended its municipal code: (1) expanded the definition of criminal "lewd act" to specify body parts (including the "bottom one-half of the anal cleft") and created a new misdemeanor, Facilitating Lewd Conduct; (2) adopted a Dress Code Ordinance requiring employees/operators at "Quick-Service Facilities" to cover specified "minimum body areas," with civil fines and license penalties for violations.
- Plaintiffs (stand owner and baristas) sued under 42 U.S.C. § 1983, arguing the Lewd Conduct Amendments and the Dress Code Ordinance are unconstitutionally vague (Fourteenth Amendment) and that the Dress Code violates the First Amendment by burdening expressive conduct.
- The district court granted a preliminary injunction enjoining enforcement of both enactments, finding likely success on vagueness and First Amendment grounds.
- The City appealed; the Ninth Circuit reviewed de novo the legal constitutional issues and vacated the preliminary injunction as to both challenged laws, concluding plaintiffs were not likely to succeed on their vagueness or First Amendment claims and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of Lewd Conduct Amendments (definition of "anal cleft" and covered areas) | Edge: terms like "anal cleft" and "bottom one-half" are ambiguous; statute fails to give fair notice and invites arbitrary enforcement | Everett: terms are ordinary, objectively ascertainable (dictionary meaning and proximate list of body parts); facilitates enforcement of lewd-conduct problems | Court: statute provides sufficiently clear, objective definitions; plaintiffs not likely to succeed on vagueness challenge (injunction vacated) |
| Vagueness of Dress Code Ordinance ("minimum body areas") | Edge: terms are vague and allow ad hoc, subjective enforcement against employees/owners | Everett: named body areas are commonly understood; enforcement requires only objective measurement of covered areas | Court: ordinance not unconstitutionally vague; does not permit arbitrary enforcement (injunction vacated) |
| First Amendment — whether baristas' attire is protected expressive conduct | Edge: wearing bikinis/pasties/g-strings conveys particularized messages (empowerment, confidence) and thus is protected; regulation burdens speech | Everett: wearing nearly-nude outfits in a commercial, tip-soliciting setting is not sufficiently communicative; any primary harms are secondary effects the City may address | Court: plaintiffs failed to show a "great likelihood" their intended message would be understood in the commercial context; attire is not expressive conduct under Spence/Johnson, so Dress Code does not burden protected expression |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (preliminary injunction standard)
- Grayned v. City of Rockford, 408 U.S. 104 (void-for-vagueness principles)
- United States v. Williams, 553 U.S. 285 (vagueness; close cases and specificity requirement)
- Papachristou v. City of Jacksonville, 405 U.S. 156 (arbitrary enforcement/vagueness concerns)
- Barnes v. Glen Theatre, Inc., 501 U.S. 560 (First Amendment and nude dancing/erotic performance context)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (intermediate scrutiny for secondary effects regulations)
- Spence v. Washington, 418 U.S. 405 (expressive conduct: intent and likelihood message understood)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (clothing as symbolic expression)