Tagami v. City of Chicago
875 F.3d 375
7th Cir.2017Background
- Sonoku Tagami participated in "GoTopless Day 2014," walking topless in public in Chicago with opaque body paint on her breasts and was cited under Chicago's public-nudity ordinance.
- Chicago ordinance criminalizes public exposure of certain intimate body parts and specifically prohibits exposing "the breast at or below the upper edge of the areola" of any female person unless covered by an opaque covering.
- Tagami was found guilty at an administrative hearing, fined, and then sued the City claiming (1) the ordinance violates the First Amendment as protected expressive conduct and (2) it violates the Equal Protection Clause by classifying on the basis of sex.
- The City moved to dismiss under Rule 12(b)(6); the district court ultimately dismissed both claims and entered final judgment for the City.
- The Seventh Circuit reviewed the dismissal de novo, accepted Tagami’s allegations as true, and affirmed the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tagami’s public toplessness is protected expressive conduct under the First Amendment | Tagami: appearing bare-chested during an organized protest communicated a political message against sex-based indecency laws | City: the ordinance regulates conduct (nudity), not speech; public nudity is not inherently expressive | Court: Nudity is not inherently expressive here; explanatory speech suggests conduct is not inherently expressive; claim dismissed |
| If conduct is expressive, whether the ordinance survives O’Brien intermediate scrutiny | Tagami: City must produce evidence that the ban furthers an important, unrelated governmental interest | City: the ordinance furthers important interests in public health, safety, morals and protecting unwilling viewers/children; history/tradition suffice | Court: ordinance survives O’Brien; history/tradition (Barnes) justify restriction; dismissal proper |
| Whether the ordinance constitutes sex-based classification implicating Equal Protection | Tagami: banning female breasts but not male breasts discriminates on basis of sex and requires heightened scrutiny | City: ordinance targets intimate body parts of both sexes; differences reflect physiology, not unconstitutional sex classification | Court: ordinance facially classifies by sex but passes intermediate scrutiny because its objectives and means align (tests similar to O’Brien); equal-protection claim dismissed |
| Whether dismissal at pleading stage was appropriate or whether factual development required | Tagami: claims require development of the record; possible that nudity here is expressive and City needs evidentiary justification | City: pleading-stage dismissal appropriate because law has longstanding pedigree and Barnes controls | Court: dismissal affirmed; majority finds no plausible First Amendment or Equal Protection violation on face of complaint |
Key Cases Cited
- Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (conduct must be inherently expressive to receive First Amendment protection)
- Texas v. Johnson, 491 U.S. 397 (test for whether conduct is readily understood as expressive)
- Spence v. Washington, 418 U.S. 405 (clarifying the Spence test for expressive conduct)
- United States v. O’Brien, 391 U.S. 367 (intermediate scrutiny for regulations that incidentally burden expressive conduct)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (nudity is not inherently expressive)
- Barnes v. Glen Theatre, Inc., 501 U.S. 560 (upholding public-nudity restriction based on history, tradition, and morals under O’Brien framework)
- United States v. Virginia, 518 U.S. 515 (intermediate scrutiny standard for sex-based classifications)
- Foxxxy Ladyz Adult World, Inc. v. Village of Dix, 779 F.3d 706 (7th Cir.) (discussing evidentiary burden for secondary-effects justifications)
- Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir.) (context on secondary-effects rationale)