Attorney: Free the Nipple FoCo Court Win Dooms All Anti-Topless Laws in Colorado

Update: Earlier this month, attorney David Lane updated us on the progress of a lawsuit filed on behalf of Free the Nipple Fort Collins, whose representatives,  Brittiany Hoagland and Samantha Six, have been fighting the city since last year to remove the words "the breast or breasts of a female" from the community's public-indecency ordinance. See our previous coverage below.

Fort Collins had asked U.S. District Judge R. Brooke Jackson to dismiss the complaint. Instead, Jackson is allowing it to move forward on two of the three claims pressed in the case — and while this decision doesn't officially resolve the matter, Lane says, "The handwriting is on the wall. When the judge says, 'This statute is unconstitutional,' for whatever reason, that means this fight is basically over."

Lane thinks this development does more than force Fort Collins to rewrite its statute. In his view, it spells doom for any other ordinance in the state of Colorado that allows men to appear topless in public but forbids women from doing likewise.

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

"He said the First Amendment doesn't apply here because it's conduct-based," Lane allows. "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 goes on, "he 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."

Why does allowing the case to move forward lead inevitably to the conclusion that Fort Collins has lost? Here's how Lane explains his reasoning.

"Some disputes are very factually based," he notes. "In a police-brutality case, the cops say, 'Yeah, we beat this guy up, but he deserved a good beating.' And the guy says, 'Bullshit, I didn't deserve a beating.' Cases like that have to go through discovery. But this is a purely legal issue. So, as a technical matter, the case is now going to go through the normal litigation process if Fort Collins wants it to — if they don't want to change their law. And then we're going to have a trial on the merits."

Choosing this approach would be pointless, Lane contends.

"The judge, based on his legal reasoning, essentially said, 'Fort Collins is going to lose at trial,'" he says. "If Fort Collins is smart, they will change their statute right now. Or we can litigate for a year and they will lose, and then they will then pay me an exorbitant attorney's fee — and they will be paying their outside lawyers representing them in this case their exorbitant attorneys' fees. The only people that benefit from prolonging this are the attorneys."

The same logic applies to any other communities that either ban female toplessness or are considering doing so, Lane maintains — hence his opinion that the ruling is precedent-setting. As he puts it, "This is the judge agreeing with my clients that any law that begins with the words, 'Women are prohibited from...' is unconstitutional."

Continue for our previous coverage.

Original post, 5:43 a.m. October 6: It's legal for women to be topless in Denver, as evidenced by the hundreds who marched along the 16th Street Mall as part of Go Topless Denver Day this summer.

But as we've reported, the laws are different in Fort Collins, where an organization called Go Topless Fort Collins has spent more than a year fighting to remove the words "the breast or breasts of a female" from the community's public-indecency ordinance. In October 2015, the Fort Collins city 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 this June.

Since then, Fort Collins has filed a motion to dismiss the suit. Shortly thereafter, attorney David Lane, who's representing Go Topless Fort Collins founder Brittiany Hoagland and Samantha Six, who are suing under their names and that of Free the Nipple Fort Collins, submitted a response, on view below, that reads in part:
It is only because female toplessness may generate feelings of outrage or shock among spectators that Fort Collins seeks to regulate such expressive activity, apparently on the assumption that spectators’ reaction may lead to thoughts about the female anatomy and its sexualized role in society which would somehow affect the “family friendly” nature of Fort Collins. But generating thoughts, ideas, and emotions is the essence of communication. Like altering or burning the American flag, Plaintiffs protest is meant to disturb the status quo in a way that is directly related to their message. That Plaintiffs’ attempt to start a conversation about the exploitation and sexualization of women’s bodies involves toplessness does not remove it from First Amendment protection.
In conversation, Lane expands on these points.

"We took this case because it's our belief that any statute that basically starts with the words 'Women are prohibited from....' is unconstitutional," Lane says. "In Fort Collins, women are prohibited from showing their nipples, but men are not. My clients are offended by that, and they believe it's illegal under both the U.S. Constitution and the Colorado Equal Rights Amendment, which says there will be no distinctions on account of sex made in the law."

Free the Nipple Fort Collins isn't the first organization of its type to take on a city over this issue. Last year, for example, Free the Nipple backers supported by the ACLU sued the community of Springfield, Missouri, over its indecent-exposure law. At this writing, the matter is still pending, but the judge in the case has issued a preliminary injunction to prevent the law from being enforced until a final resolution is reached, and he's also rejected the same kind of dismissal motion offered up by Fort Collins.

"These laws are being challenged across the country, and as a general rule, the challenges are winning, with an occasional loss," Lane notes. "But to us, this is a basic equality issue — and there's also a First Amendment component to it. In terms of free speech, conduct is deemed speech for the purposes of the First Amendment, and my clients want to drive home the point that equality should exist by going topless — which is a political message they wish to send."

Lane characterizes Fort Collins's basic position as "'Oh, my God, think of the children! Oh, my God, we're a family-friendly town! Oh, my God, if breasts run amok in the streets of Fort Collins, our ordered liberty will come to a standstill!'"

More seriously, he adds, "They talk about culture and tradition, which are the same arguments made against same-sex marriage, as well as interracial marriage and integration years ago. So while this doesn't rise to the level of those things, it's a lesser degree of the same mindset."

As a result, he rejects any suggestion that a lawsuit over topless rights is frivolous. "I have often said my client in every case I have is the Constitution of the United States of America. And if there is an encroachment on the Constitution, regardless of what the issue may be, then it's an important case."

Here's the response to Fort Collins's motion to dismiss the case.

Free the Nipple Fort Collins v. City of Fort Collins: Response to Motion