The City of Everett, Washington, got very upset with the so called “Bikini Baristas”, and passed local laws which criminalized the clothing they wear as “lewd conduct”, and enacted a dress code for “Quick-Service Facilities,” which was clearly designed to apply to the drive through coffee-stands. In fairness to the City, the “bikinis’ were really only pasties and g-strings, instances of clearly lewd conduct, as well as customer-barista physical contact, had been documented, and one sheriff’s deputy had even been convicted of helping an owner evade the undercover officers in exchange for sex acts. Although the city police were clearly able to make arrests for the acts that violated the existing public lewdness laws, the city complained that the resources required for undercover investigation of these businesses could be better spent elsewhere and that the new ordinances would make enforcement much easier.
The Ordinances and the Baristas’ Arguments: Baristas working at “Hillbilly Hotties” sued the city, challenging the constitutionality of prohibiting “more than one-half of the part of the female breast located below the top of the areola,” “the genitals, anus, bottom one-half of the anal cleft, or any portion of the areola or nipple of the female breast” as well as the dress code provision requiring the covering of “the upper and lower body (breast/pectorals, stomach, back below the shoulder blades, buttocks, top three inches of the legs below the buttocks, pubic area and genitals).”They claimed portions of these ordinances were unconstitutionally vague. In their complaint, the Baristas pointed out that the length of a common woman’s shirt is often short enough that stretching or bending would reveal part of her back or stomach, violating the dress code, Complaint Doc. 1 ¶4. They also argued that in order to enforce the law, police would have to require suspects to expose their entire beasts in order to measure the top of the areola to determine whether “more than one-half of the part of the female breast located below the top of the areola” is covered. Women with larger areola or breasts are subject to different restrictions than women with smaller areola or breasts and accurate determination would be impossible without such exposure. Id. at ¶¶31-3.
The Baristas Win the First Round:
The District Court judge1 found that the ordinances were probably not valid because they were constitutionally vague, especially because the term “bottom one half of the anal cleft” was not well-defined or reasonably understandable, and that the ordinances failed to provide clear guidance and presented risks of arbitrary enforcement. The District Judge reasoned that their choice of clothing was “communicative”, and conveyed messages of particularized values, beliefs, ideas, and opinions; namely, body confidence and freedom of choice, and that these messages are understood by customers. The City argued that the “message”, if any, was not sufficient to qualify for free speech protection, and was understood only as a sexual image. The District Court ruled that the constitutional challenges to the ordinances should be analyzed according to the “intermediate scrutiny” standard2. A law satisfies intermediate scrutiny “if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues of communication.” It was clear that the ordinance was designed to serve a substantial government interest, which was to decrease crime and public sexual conduct, but the District Judge found that the City failed to establish a sufficient causal connection between the outfits worn by the Baristas and the crime and other secondary effects. It is also a basic principle of constitutional law that no government should burden substantially more speech than is necessary to further the government’s legitimate interests. The District Judge found that the ordinances went far beyond prohibiting pasties and g-strings, and required employees of all “Quick Service Facilities” to wear substantially more clothing than all other city residents. Feeling the Baristas would ultimately win the case, the District Judge awarded them a preliminary injunction prohibit enforcement of the ordinances while the case went forward. The City Appealed…..and
The Baristas Lose on Appeal
The appeals court3 viewed the case much differently, reasoning was as follows. First, since the terms “anal” and “cleft” are easily found in the dictionary, the public would not be left to guess about the meaning of the term, which is reasonably ascertainable to a person of ordinary intelligence. The second part of the vagueness test concerns whether the criminal “lewd conduct” provisions were amenable to unchecked law enforcement discretion. The appellate court recognized that some degree of law enforcement subjectivity might be involved in close cases, but the mere fact that there will be close cases does not make a law unconstitutionally vague. Where it is a criminal law, the defendant charged with committing the crime will always be entitled to proof beyond a reasonable doubt, which is sufficient protection in those close cases. Makes a law vague is not that it might be hard to determine whether the incriminating fact it establishes has been proved, but rather the indeterminacy of precisely what that fact is. A good example of a vague statute is a ban on the assembly of three or more persons on city sidewalks if they conduct themselves in a manner annoying to passers-by. Criminalizing conduct that is annoying is constitutionally vague, because what is annoying to one person may not be to another.
The appeals court did not feel that the choice to wear pasties and g-strings was sufficiently “expressive” to qualify for First Amendment protection. The First Amendment, by its terms, only protects speech, but it is clear that First Amendment protection extends to “expressive conduct.” Conduct that has sufficient elements of communication is protected, but conduct does not qualify as “speech” every time the actor intends to express an idea. Expressive conduct is characterized by two requirements: (1) an intent to convey a particularized message and (2) a great likelihood that the message would be understood by those who viewed it, i.e. students who wore black armbands to protest the Vietnam War engaged in expressive conduct closely akin to speech. The Barista’s claim failed because even if they intended to convey messages of female empowerment and confidence by choosing to wear pasties and g-strings, wearing those items was not likely to be interpreted that way by those viewing them, particularly in a commercial setting where they are very close to the customers and trying to get large tips. The appeals court ruled that because the city’s dress code does not restrain any expressive conduct entitled to First Amendment protection, the “intermediate scrutiny” test used by the District Court did not apply; the City was only required to show that the ordinance promotes a substantial government interest that would be achieved less effectively absent the regulation. This is a very low burden which the city easily met. The appellate court made is clear that these ordinances are constitutional and valid.
P.S. – Nude and Semi-nude Dancing
It should be noted that nude and semi-nude dancing has been left to be expressive conduct entitled to at least some First Amendment protection, but the Baristas did not claim that they were covered by this. The City of Everett allows nude dancing, but it is subject to the adult entertainment licensing and zoning restrictions, which the owners of the Bikini Barista establishments chose not to comply with.
 Depending on the nature of the speech, different standards are used to determine the validity of the government interest in restricting the speech and the extent to which the speech may be prohibited or limited. These analyses can become complex and go beyond the scope of a blog post like this.