As I was skimming through some articles on the First Amendment Center website, I came across the court case concerning a woman who was exercising her First Amendment rights in an unusual way. Instead of making signs and marching around or passing around a petition, this woman formed a protest by walking around a park bare chested. And she wasn't the only one. In September of 2006, Lorien D. Bourne and a few of her friends gathered in a public park to "raise awareness of sexism and double standards. Calling themselves the Titty Committee, several of the women, including Bourne, removed their shirts" (1). After some people complained of topless women in a public park, a police officer arrived and asked the topless ladies to put shirts on. The officer then proceeded to issue citations for disorderly conduct to the ladies.
In a Bowling Green Municipal court, Bourne was found guilty and fined $25 plus court costs. Bourne then appealed to the Ohio appeals court. Her argument was that the charges violated her First Amendment rights of free expression and equal protection. Bourne "claimed the city violated her 14th Amendment equal-protection rights because men can go shirtless in public, often without incident, while women face criminal punishment for the same activity. She also asserted a free-expression defense, contending that she was expressing her opposition to sexism" (1).
The Ohio appeals court did not accept these claims as strong enough arguments. In City of Bowling Green v. Bourne, the court decided that the officer that gave Bourne the citation for disorderly conduct was not going against equal protection because Bourne and the other women were breaking Bowling Green Ordinance 132.o4 which prohibits " Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender" (2). So that means to some, Bourne's breasts were physically offensive. The court then said it "does agree that there are occasions where shirtless males are offensive; however, we cannot ignore the firmly rooted societal differences between male and female anatomy" (2). The fact that female breasts are associated with sexual conduct makes them inappropriate to display in public, especially if children are present.
Concerning Bourne's argument that her speech was infringed upon, the court claimed that Bourne's "speech was expressive conduct, rather than pure speech. Because there was no verbal or written explanation about the protest, observers could have easily believed that appellant was merely sunbathing rather than making a political statement about sexism and double-standards" (2). Bourne did not make it clear that she was protesting, so everyone who viewed the half-naked women were not aware that they were protesting anything. The officer who told Bourne to put her shirt back on did only that, he did not try to break up the group or to shut down the protest. He merely told them to cover themselves up for the sake of public decency. It was not the message that was halted, but the conduct.
In a somewhat similar case also on the First Amendment Center website, a Florida woman was arrested in March of 2004 for baring her breasts in a protest against laws that prohibit women from going topless on Florida beaches. Elizabeth Book was not only arrested, but was fined $253 as well, under the basis that she, "violated an ordinance banning public nudity that was passed in 2002 to curb indecency at special events" (3). Book and many others marched down a crowded street to protest the city's nudity ordinances.
Book and her friend then "sued the city and mayor...saying they believe it is unfair that only men are allowed to go topless in public places. Their lawsuit claims they should be allowed to protest topless under the free-speech, freedom-of-assembly and equal-protection clauses of the U.S. Constitution" (3). Like the Bourne case, Book was protesting the fact that men can go shirtless in public, but women cannot, and that the First Amendment should protect their protest.
In a later article, a Florida appeals court ruled in favor of Book, saying that she "can demonstrate topless as part of a legitimate political protest" (4). According to the court, Book has protection under the First Amendment to protest topless, as it is an expression of free speech. While the Deputy City Attorney Marie Hartman disagrees with this decision, it does not change it. Book was cleared of charges and did not violate any Florida laws.
If Book was allowed to go topless in order to demonstrate a political protest, why wasn't Bourne allowed to show her breasts in public as well? If Bourne's protest was in fact "legitimate", why was her appeal overruled and according to Bourne, her First Amendment rights taken away? I think it is strange that one case would say protesting topless is protected under the First Amendment, but another say it is not speech, but conduct?
Maybe it has to do with the individual states the women were protesting in. Perhaps Ohio has certain ordinances banning such activity that Florida does not. I am not sure how I feel on this topic. I don't see why any woman would want to go topless in public, and I would definitely be shocked if I witnessed a half-naked woman walking down the street, but I understand why some of these women feel their rights were taken away when they were arrested while protesting.
Sources:
(1)First Amendment Center Bourne article
http://www.firstamendmentcenter.org/analysis.aspx?id=19274
(2) Bowling Green v. Bourne
http://www.sconet.state.oh.us/rod/newpdf/6/2007/2007-ohio-5748.pdf
(3) First Amendment Center Book article #1
http://www.firstamendmentcenter.org/news.aspx?id=12838
(4) First Amendment Center Book article #2
http://www.firstamendmentcenter.org/news.aspx?id=17548
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4 comments:
It is interesting to see how the different court cases can afflict different results. Now where I agree that I cannot truly imagine seeing a half naked woman walking down the street, I am also not sure that society is ready for such a drastic step. I agree that woman and men should receive the same rights and should be created equal, but yet I would also have to agree that it is vital to remember the differences in anatomy between the sexes. Seeing these differences does not make one sex superior to the other in any way shape or form.
The First Amendment is supposed to protect speech, not action. In fact the idea of the First Amendment is that it protects speech before it turns into action. In the Bourne case, if she wished to make such a big deal out of her attempts at equality, then perhaps she should have created a protest, it may have in fact saved her from all of the hassle. I can see where the First Amendment would blanket topless speech within a protest since the First Amendment also grants the right to assemble and petition.
I also have to take a step back and think about what the framers intent was in witting the First Amendment. Where the framers in fact intending to protect public nudity?
I had to laugh when I read the subject of your post - I almost used this topic for this week's blog! I chose not to, but I'm glad someone did--it's definitely interesting, if nothing else. While I agree that women should be created equal, I find value in Amy's comment above mine: there are (rather significant) differences in female anatomy in comparison to male anatomy.
It seems to me that in Bourne's case, the officer asked her to stop the conduct (the law-breaking conduct, specifically) of public indecency and put on her shirt. As it was not clear that she was protesting, I have no idea where this woman is taking this idea of her free expression being halted.
It seems to me that if someone went without pants and later, post-arrest or post-public indecency notice, claimed that they were protesting the idea that animals don't wear pants but we must cover our lower half in some way, they'd be ridiculed and be a subject of laughter. My (unclear) point by that example is that if everyone can go against some public ordinance, law, etc. and then claim that they were "expressing" themselves, or "protesting", we'll have a mess on our hands.
Bourne did raise awareness, but not of sexism or double standards. Without clearly indicating the purpose of her shirtless state, Bourne and her cohorts managed to raise only the awareness that the First covers speech and protest, not action without the clearly defined protest message.
Amy's right: did the Framers of our Constitution count on some women wanting to have the right to go topless as part of their First Amendment protection? I highly doubt so.
"The fact that female breasts are associated with sexual conduct makes them inappropriate to display in public, especially if children are present."
I'll admit that as a female I have never quite understood why it is so taboo to go shirtless. And to make it understood, I've never had a burning desire to go topless to express my opinions, much less get a better tan, but I guess the fall back is always they quote I pulled from above; women's bodies have a much more sexual connotation than that of a man.
I'd like to say that I don't think Bourne had to show herself in such way to get her opinion across, but then you must consider perhaps the only factor that would make her heard, that is, the shock value of her actions. I don't know exactly how I feel about this particular situation, but I do know after talking about obscenity in class that there is no way to know what is decent if there is no indecency. And, considering that women's bare upper halves are so rarely shown in common media, it's all a matter of protecting people who would find this offensive, ie, the principle of captive audience.
Hmm...intent of the Framers aside, this case is an interesting demonstration of different courts' interpretations of the distinction between speech and conduct, which has always been an ambiguous area for the court. Usually expressive conduct is protected, like burning the flag, so the difference between expressive and nonexpressive conduct may have resulted in the differing court decisions. Book was supposedly using her right to assembly because she protested her arrest afterwards, but her specific action of protest was about identical to Bourne's. Did the Florida court just rule differently because Book's action was aimed at a specific ordinance? She initially did not make it very clear that she was protesting nudity laws either, or she made it about as clear as Bourne did. I wonder if subsequent protests should really be factored into the Florida court's decision instead of just the action of going topless itself.
Personally, I couldn't see why a woman would want to go around topless either, and in fact I believe that it would increase, not decrease sexism. Isn't claiming the right to go around topless in a way confirming stereotypes that objectify women? I find their creative use of the 14th Amendment to be intriguing, but some double standards are justified in my view.
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