Dist. Ct. did not err in granting defendant-City’s motion to dismiss plaintiff’s action alleging that defendant’s ordinance prohibiting public nudity, under circumstances where plaintiff received citation for walking around naked from waist up while wearing opaque body paint on her bare breasts, violated her 1st Amendment freedom of speech rights, as well as violated Equal Protection Clause. Plaintiff had no viable 1st Amendment claim, since: (1) instant ordinance regulated conduct, as opposed to speech; and (2) being in state of nudity is not inherently expressive condition that was protected by 1st Amendment. Also, defendant’s justification for banning public nudity; i.e., preservation of health, safety and traditional moral norms, was sufficient under O’Brien, 391 U.S. 367, to justify any incidental limitation on plaintiff’s 1st Amendment rights, even though defendant failed to produce evidence to support justification. Too, plaintiff could not assert viable equal protection claim, even though ordinance listed more intimate body parts for women than men that were subject of ordinance, instant sex-based classification was compatible with Equal Protection Clause given physical differences between men and women, and given that said classification was substantially related to achievement of same governmental justification used to support ordinance.
Federal 7th Circuit Court
Civil Court
First Amendment