Fighting Free the Nipple Topless Order Will Cost Fort Collins $250K, Attorney Says

An image from the Free the Nipple Facebook page.
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Update: Attorney David Lane says the decision by Fort Collins to appeal last month's temporary restraining order against the enforcement of the city's topless ordinance (see our previous coverage below) is a "titanic waste of money." He estimates that the fight will cost taxpayers in the community $250,000 for reasons that strike him as patently absurd.

"I can only assume that someone in Fort Collins was either attacked by or seriously offended by a wild nipple," he says. "Now that they're uncaged, you know how they can get."

According to Lane, he has heard no reports about "sightings of uncaged nipples since the injunction occurred," which only makes the expense of an appeal even more jaw-dropping. "If they run through all their appeals, it'll cost about a quarter of a million bucks" — around $150,000 to pay the fees for his firm, as well as around $100,000 for outside counsel retained by FoCo.

Such an outlay is definitely a gamble, because Lane doesn't see a path to victory for the city. He considers U.S. District Court Judge R. Brooke Jackson's rationale for instituting the restraining order in February to be "the correct legal interpretation," and he has "no reason to believe" that a three-judge panel at the 10th Circuit Court of Appeals, the recent home base of U.S. Supreme Court nominee Neil Gorsuch, will feel differently. In his view, "there are a lot of very smart judges on the 10th Circuit who will agree with Judge Jackson."

He asks the following questions of Fort Collins taxpayers: "How many cops could be hired for a quarter-million dollars? How many teachers could be hired for a quarter-million dollars? Do you really have nothing better to do with your tax dollars than protect the people of Fort Collins from unchained nipples, of which apparently none have been cited since the injunction went into effect? Although nipples are like migratory birds: They only appear seasonally."

Lane adds: "Apparently, Fort Collins is one of the richest jurisdictions in the State of Colorado. If they have a quarter-million dollars to waste on protecting people from nipple sightings, their schools must be incredible, their police department must be outstanding, their roads must not need any work.... Apparently, Fort Collins is willing to pay any amount to protect its citizens from nipples."

Continue for our earlier report.

Original post: Fort Collins is appealing a temporary restraining order issued last month against the enforcement of a public-indecency ordinance that includes the words "the breast or breasts of a female," despite a statement from the ruling judge that he would likely rule against the community on constitutional grounds.

As first reported by the Fort Collins Coloradoan, city attorneys notified Denver's 10th Circuit Court of Appeals of the action, which attacks a February edict from U.S. District Court Judge R. Brooke Jackson shared below.

The appeal refutes a prediction made after Jackson's ruling by attorney David Lane, whose clients, Brittany Hoagland and Samantha Six, represent an organization dubbed Free the Nipple — Fort Collins. He told us at the time that the order leaves Fort Collins "with two choices. They can probably try to prevent everyone from walking around bare-chested — and good luck with that. Or they can just let it go."

As we've reported, it's legal for women to be topless in numerous Colorado communities, including Denver, as evidenced by the hundreds who marched along the 16th Street Mall as part of Go Topless Denver Day this past summer.

Fort Collins chose a different path, prompting Hoagland's initial group, Go Topless Fort Collins, to lobby its city council to make a change. But in October 2015, the council left the prohibition against female toplessness in place for everyone other than breastfeeding mothers and girls ages ten and younger, prompting the launch of a lawsuit in June 2016.

After the suit's filing, Fort Collins asked U.S. District Judge R. Brooke Jackson to dismiss the complaint. But last October, Jackson allowed it to move forward on two of the three central claims — and while his decision didn't officially resolve the matter, Lane told us at the time that "the handwriting is on the wall. When the judge says, 'This statute is unconstitutional,' for whatever reason, that means this fight is basically over."

Of the three rationales presented by Lane to fight the Fort Collins ordinance, the one Jackson rejected was related to free speech.

Brittany Hoagland posted this photo shortly after the temporary restraining order was put in place. "I can wear my spouse's original protest sign he made two years ago," she wrote. "Mine said, 'Illegal to remove.'"
Brittany Hoagland posted this photo shortly after the temporary restraining order was put in place. "I can wear my spouse's original protest sign he made two years ago," she wrote. "Mine said, 'Illegal to remove.'"
Facebook

"He said the First Amendment doesn't apply here because it's conduct-based," Lane said for an October 2016 post. "Now, conduct can be First Amendment-protected speech. But you have to have a particularized message you're putting out there, and these women have done that. But the other key, on a First Amendment conduct analysis, is that a viewer has to be able to readily understand what your message is conveying. For example, if you burn an American flag, a viewer would immediately understand, 'Oh, this is a protest against America.' So it's a particularized message that's very clearly understandable by the average person. A bunch of women going topless, they're putting out a message, but it's not a message that's readily understandable by the average person. Therefore, he said, the First Amendment doesn't apply."

However, Lane went on, Jackson "said equal protection and the Colorado Equal Rights Amendment do apply. To say men can go topless but women can't is a violation of the 14th Amendment to the U.S. Constitution and the Equal Rights Amendment in the Colorado Constitution."

Jackson confirmed Lane's interpretation in his injunction order. In one passage, the judge wrote, "Throughout this case, Fort Collins has repeatedly pointed out that it is far from unique in enacting laws that criminalize females — and only females — who appear topless in public." After adding references to similar ordinances in Lincoln, Nebraska, and Albuquerque, New Mexico, he noted the city's argument that "striking down the law would upset many Fort Collins residents."

His response? "Unfortunately, our history is littered with many forms of discrimination, including discrimination against women. As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment."

Lane, speaking in February shortly after the order was made public, summarized the ruling like so: "The judge said that the Equal Protection Clause of the U.S. Constitution requires that men and women be treated equally. Fort Collins is one of the few jurisdictions anywhere that makes the distinction, saying that men can walk around bare-chested and women can't. But the judge shot down all the reasons Fort Collins was using to justify it."

Among the defenses, Lane continued, "was, 'Think of the children!' But the judge said, 'I think one of the first things children see when they're born are nipples — on breasts.'"

Fighting the lawsuit has already proven expensive, as Hoagland emphasized with the following Facebook graphic, shared shortly after the judge's order last month.

A meme shared by Hoagland after the judge's order in February.
A meme shared by Hoagland after the judge's order in February.
Facebook

One estimate suggests that an appeal could cost Fort Collins more than three times this amount and drag out for as long as a year.

Hoagland, who wants the temporary restraining order made permanent, was among many observers who thought the fight over the Fort Collins ordinance had ended. On Facebook, she wrote, "I MUST STRESS this win is not just for bodies we see on billboards! This win is for gender nonconforming people, trans people, disabled people, black people, brown people, fat people, for young and old, for tattooed and scarred!"

She added, "The diversity of the human body deserves to be celebrated, represented and COMFORTABLE especially on a hot day! That means you, if you so choose."

This choice is not yet final for the citizens of Fort Collins thanks to the city's latest move. Here's the aforementioned order from Judge R. Brooke Jackson.


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