In August 2015, an organization called Go Topless Fort Collins challenged that city to remove the line "the breast or breasts of a female" from its public-indecency ordinance.
After controversy aplenty, the so-called Free the Nipple effort, spearheaded by Brittiany Hoagland, fell short. The following October, the Fort Collins city council voted to grant exceptions to the rule only to breastfeeding mothers and girls ages ten and younger.
But Hoagland, who's now identifying herself with the organization Free the Nipple — Fort Collins, isn't giving up.
She's one of the plaintiffs in a lawsuit against Fort Collins that seeks to strike down the regulation on the grounds that it is "based on antiquated social mores; justification for the ordinance is rooted in outdated nineteenth century puritanical values and discrimination, nothing more."
The attorney who filed the lawsuit on behalf of Hoagland, Samantha Six and Free the Nipple — Fort Collins (a local affiliate of what's become a national movement) is David Lane, whose areas of interest include freedom of speech. And indeed, the suit, seen below in its entirety, does feature a First Amendment claim.
The ordinance, according to the lawsuit, "violates the Free Speech Clause of the First Amendment to the Constitution, on its face and as applied, because it impermissibly curtails Plaintiffs' free-speech rights" — specifically in the context of an August 23, 2015 protest in Fort Collins, during which "the women covered their nipples and breasts because it would have been a crime not to do so" due to the "frivolity of Fort Collins' sex-based regulation of nipples and breasts."
That's not the only claim, however. The suit also maintains that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment, which provides that "no State shall...deny to any person within its jurisdiction the equal protection of the laws."
In addition, the lawsuit cites the Equal Rights Amendment to the Colorado Constitution, which provides that the "equality of rights under the law shall not be denied or abridged by the State of Colorado or any of its political subdivisions on account of sex."
Fort Collins's current stipulations are hardly universal. The lawsuit notes that "women's right to appear topless at public places has been recognized by thirty states," not to mention numerous cities in Colorado — among them Denver, Boulder, Vail, Lakewood, Broomfield, Erie, Brighton, Commerce City, Englewood, Westminster and Arvada.
Other Colorado communities allow toplessness with restrictions.
For instance, Golden allows a woman to appear topless sans the "intent to arouse or to satisfy the sexual desire of any person." Likewise, Greeley restricts the right of toplessness by either gender only "if an individual commits the act of lewdly fondling his or her breast."
Disagreeing with Free the Nipple's philosophy is Fort Collins city councilman Ray Martinez. An e-mail from Martinez quoted in the suit posits that allowing females to appear topless in a public place would "denigrate a woman's respect and value." He added that "we endorse a program from the White House called 'It's on us' to prevent women from assaults" and that altering the ordinance to allow toplessness by women would be "counterproductive to the very cause."
Martinez added, "We have nothing to gain by passing such a law other than a poor reputation."
Or avoiding a lawsuit. Here's a 7News report about the filing, followed by the document itself.
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