HomeMy WebLinkAbout2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 055B - INITIAL TRANSMITTAL OF COURT RECORD1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-1308
FREE THE NIPPLE – FORT COLLINS, an unincorporated association,
BRITTIANY HOAGLAND, and
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLLINS, COLORADO,
Defendant.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, by and through their attorneys David Lane and Andy McNulty, hereby
file this Motion for Preliminary Injunction. Plaintiffs respectfully request that this
Court enjoin enforcement of FORT COLLINS,CO., MUN.CODE § 17-142 (2016) and
prohibit Defendants from discriminatorily arresting Plaintiffs, and all others similarly
situated, when they engage in the protected activity of standing topless in public places
in Fort Collins, Colorado. The grounds for this motion are set forth fully herein:
INTRODUCTION
This is a civil rights action for declaratory and injunctive relief as well as fees
and costs arising under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. § 2201 et seq. due to
Defendant’s current and imminent violations of Plaintiffs’ rights guaranteed by the First
and Fourteenth Amendments to the United States Constitution and the Equal Rights
Amendment to the Colorado Constitution. Plaintiffs wish to stand topless in Fort
Collins, Colorado as a protest against the exploitation and sexualization of women’s
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bodies, but are prevented from doing so by a sexist, puritanical ordinance that
criminalizes the exposure of the female breast and nipple while permitting exposure of
the male breast and nipple.
In August 2015, Plaintiffs Free the Nipple – Fort Collins, an unincorporated
association, Brittiany Hoagland, and Samantha Six, residents of Colorado (collectively,
“Plaintiffs”), began to raise awareness about a discriminatory ordinance in Fort Collins,
Section 17-142, which criminalized women for appearing topless at public places but
imposed no sanctions on men for engaging in the exact same activity. As a result of
Plaintiffs’ efforts, the Fort Collins City Council scheduled a meeting on October 20,
2015, so as to consider repealing the ordinance.
In anticipation of the October 20, 2015, city council meeting, whereat Section
17-142 would be discussed, Plaintiffs organized a rally in downtown Fort Collins, at the
corner of College Avenue and Mulberry Street on August 23, 2015. At the protest, men
and women engaged in expressive conduct to convey a particularized message:
promoting gender equality, protesting women’s inferior legal status, and denouncing the
double standard underlying government censorship of female breasts. Hoagland, Six,
and other female rally participants complied with the previous version of Section 17-
142 by covering their breasts and nipples but otherwise exposing the tops of their
bodies. Male participants also exposed the tops of their bodies but also covered their
breasts and nipples, though not required to by law, as a sign of solidarity with women
and to demonstrate the frivolity of Fort Collins’ sex-based regulation of nipples and
breasts.
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During the city council meeting on the evening of October 20, 2015, and in
direct response to the protests, the Fort Collins City Council amended the language of
Section 17-142 and reinforced its sex-based distinctions. The language of Section 17-
142 states: “No female who is ten (10) years of age or older shall knowingly appear in
any public place with her breast exposed below the top of the areola and nipple while
located: (1) in a public right-of-way, in a natural area, recreation area or trail, or
recreation center, in a public building, in a public square, or while located in any other
public place; or (2) on private property if the person is in a place that can be viewed
from the ground level by another who is located on public property and who does not
take extraordinary steps, such as climbing a ladder or peering over a screening fence, in
order to achieve a point of vantage.” The ordinance defines “public place” as “a place
in which the public or a substantial number of the public has access, and includes but
i[s] not limited to highways including sidewalks, transportation facilities, school[s],
places of amusement, parks, playgrounds and the common areas of public and private
buildings and facilities, and shall not include any theater, concert hall, museum, school
or similar establishment to the extent the same is serving as a performance venue.” The
ordinance exempts from this regulation “women breastfeeding in places they are legally
entitled to be.” See FORT COLLINS,CO., MUN.CODE § 17-142 (2016). The new
ordinance restricts women—and only women—from publicly showing any portion of
their breasts below the top of the areola or nipple. The new ordinance only includes
exceptions for female breast exposure if it is necessarily incident to breast-feeding an
infant.
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Fort Collins’ new ordinance violates the First Amendment as a content-based
restriction on protected expression. It also violates the Fourteenth Amendment’s Equal
Protection clause because it is a gender-based classification neither supported by, nor
substantially related to, a constitutionally sufficient justification. Finally, it violates the
Colorado Constitution’s Equal Rights Amendment because it is a sex-based
classification that is not narrowly tailored to further a compelling government interest.
In this motion, Plaintiffs request that this Court enjoin enforcement of Section 17-142.
Plaintiffs plan to hold further protests at public places in Fort Collins, Colorado. They
wish to participate in those events and invite others to do so as well. They have been
chilled, in violation of the First Amendment, from engaging in the expressive conduct
uniquely suited to convey their message about systemic and invidious gender
inequality.
FACTUAL BACKGROUND
All statements of fact are set forth in the simultaneously filed Complaint and are
hereby incorporated into this Motion for Preliminary Injunction as though set forth fully
herein.
PARTIES
All statements of fact regarding the parties are set forth in the simultaneously
filed Complaint and are hereby incorporated into this Motion for Preliminary Injunction
as though set forth fully herein.
ARGUMENT
I. Preliminary Injunction Standard
In considering whether to issue a preliminary injunction, this Court must
consider: (1) whether Plaintiffs have a substantial likelihood of prevailing on the
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merits, (2) whether Plaintiffs face a threat of irreparable harm absent the injunction, (3)
the balance between this harm and the injury that the injunction’s issuance would inflict
upon Defendant, and (4) the public interest. American Civil Liberties Union v. Johnson,
194 F.3d 1149, 1155 (10th Cir. 1999). “When a plaintiff has shown a likely violation of
his or her First Amendment rights, the other requirements for obtaining a preliminary
injunction are generally deemed to have been satisfied.” Minnesota Citizens Concerned
for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2011) (en banc) (internal
quotation marks omitted). Accordingly, when plaintiffs are “likely to win on the merits
of [their] First Amendment claim, a preliminary injunction is proper.” Id. at 877.
II. Plaintiffs are likely to succeed on the merits.
A. Section 17-142 of the Fort Collins Code of Ordinances violates the
First Amendment.
i. Plaintiffs’ topless protest is expressive conduct.
Plaintiffs’ expressive conduct, appearing topless at public places to protest the
exploitation and sexualization of the female body, is protected because Plaintiffs intend
to convey a particularized message that is likely to be understood by those who view it.
See Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing Spence v. Washington, 418 U.S.
405 (1974)); see also Tagami v. City of Chicago, 2015 WL 4187209, at *1-2 (N.D. Ill.
July 10, 2015) (finding that topless protester at “GoTopless Day” event had “engaged in
expressive conduct protected by the First Amendment”); Hightower v. City & County of
San Francisco, 77 F. Supp. 3d 867, 878 (N.D. Cal. 2014) (finding that nude protesters
at city hall expressing “pro-body” and anti-public-indecency-ordinance messages
engaged in protected expression).
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Plaintiffs choose this particular expressive conduct in order to convey their
message against systemic, invidious gender discrimination and the censorship of the
female body. Plaintiffs’ actions have significant expressive meaning, especially in the
context of “Free the Nipple” rallies and similar demonstrations. See Spence, 418 U.S. at
410 (“[T]he context in which a symbol is used for purposes of expression is important,
for the context may give meaning to the symbol.”); Tagami, 2015 WL 4187209, at *2.
The fact that Plaintiffs’ conduct might be offensive to some does not make it any
less expressive or protected. See Spence, 418 U.S. at 412 (noting that expression may
not be prohibited merely “to protect the sensibilities of passersby”); see also Johnson,
491 U.S. at 414 (“If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.”).
Finally, Plaintiffs’ expressive conduct “can ‘be fairly considered as relating to
any matter of political, social or other concern to the community[.]’” Snyder v. Phelps.
562 U.S. 443, 453 (2011) (quoting Connick v. Myers, 463 U.S. 138, 146 (1983).
Plaintiffs’ expressive conduct is a protest of, and concerns the, exploitation and
sexualization of women’s bodies, along with the subjugation of women in modern
society. Plaintiffs’ expressive conduct is, therefore, speech on public issues or political
speech. Id. “‘[S]peech on public issues occupies the highest rung of the hierarchy of
First Amendment values, and is entitled to special protection.’” Id.
ii. Plaintiffs’ expressive conduct takes place in a traditional public
forum.
Section 17-142 restricts Plaintiffs’ constitutionally protected expression in all
public places, necessarily including public fora, which garner special protection under
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the First Amendment. This is evident by example of Plaintiffs’ public protests prior to
the October 20, 2015 city council meeting, which took place at public sidewalks
adjacent to public streets in downtown Fort Collins. These sidewalks, traditional public
fora, are regulated by Section 17-142.
Public sidewalks “are considered, without more, to be ‘public forums[.]’” United
States v. Grace, 461 U.S. 171, 177 (1983); Frisby v. Schultz, 487 U.S. 474, 481 (1988)
(finding that courts need not make any “particularized inquiry into the precise nature of
a specific street” because “all public streets are held in the public trust and are properly
considered traditional public fora”). “It is no accident that public streets and sidewalks
have developed as venues for the exchange of ideas.” McCullen v. Coakley, 134 S. Ct.
2518, 2529 (2014); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939)
(“Wherever the title of streets and parks my rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public
questions.”). Section 17-142 clearly restricts constitutionally protected expression at
public fora.
The Supreme Court has held that public sidewalks adjacent to public streets
occupy a “‘special position in terms of First Amendment protection’ because of their
historic role as sites for discussion and debate.” McCullen, 134 S. Ct. at 2529 (quoting
Grace, 461 U.S. at 180). Accordingly, “the government’s ability to restrict expression
in such locations is very limited.” Id. at 2529 (internal quotation omitted). This is
especially true for content-based restrictions. Id. (quoting Police Dep’t of Chicago v.
Mosley, 408 U.S. 92, 95 (1972)) (“In particular, the guiding First Amendment principle
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that the ‘government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content’ applies with full force in a traditional public
forum.”).
iii. The ordinance is content-based.
Section 17-142 is a content-based restriction of expression. Although the
Supreme Court has long held that content-based restrictions elicit strict scrutiny, see,
e.g., Carey v. Brown, 447 U.S. 455 (1980), lower courts diverged on the meaning of
“content-based” until Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).1 Reed clarified
that a restriction is content based simply if it draws distinctions “based on the message
a speaker conveys.” 135 S. Ct. at 2227. Reed is clear that even “subtle” distinctions that
define regulated expression “by its function or purpose . . . are distinctions based on the
message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. This
accords with Johnson, which held that “the emotive impact of speech on its audience is
not a secondary effect unrelated to the content of the expression itself.” 491 U.S. at 412
(internal quotations omitted). Section 17-142 is content-based for three distinct reasons.
First, Section 17-142 criminalizes expressive conduct only from certain speakers:
women and girls. Even if it did not distinguish between protected and prohibited speech
because of its function or purpose, Section 17-142 would be content-based because it
privileges certain speakers over others. See Turner Broadcasting Sys., Inc. v. FCC, 512
U.S. 622, 658 (1994); see also Reed, 135 S. Ct. at 2231 (noting that speaker-based laws
are not necessarily content neutral).
1 Reed involved a municipal “sign code” that regulated signs differently based on the
kind of message they conveyed (such as “ideological,” “political,” or “temporary
directional”). 135 S. Ct. at 2224-25. The Court rejected the city’s argument that a law
had to discriminate against certain viewpoints in order to be a content-based restriction.
Id. at 2229.
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Second, it is a content-based restriction on expression because it explicitly
criminalizes only some instances of toplessness but not others, based on each instance’s
“function or purpose.” Reed, 135 S. Ct. at 2227. Section 17-142 expressly permits the
exposure of female breasts as long as it is for the purpose of “breastfeeding.” Id. The
law is therefore content based because a police officer would have to determine the
purpose the expressive conduct served before deciding whether there was probable
cause a woman was violating the law. See Reed, 135 S. Ct. at 2227 (where a law draws
a distinction “on its face” by “defining regulated speech by its function or purpose,” it
is content based).
Third, even if Section 17-142 were facially content neutral, it would still be
“considered content-based” because it was “adopted by the government because of
disagreement with the message [the speech] conveys.” Reed, 135 S. Ct. at 2227 (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Section 17-142 was re-
enacted solely to prevent expression through exposure of the female breast and
Plaintiffs’ protests against invidious gender discrimination; it was aimed explicitly
against chilling future protests.
These distinctions make Section 17-142 a facially content-based restriction on
expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412;
Reed, 135 S. Ct. at 2227.
iv. Section 17-142 fails under strict scrutiny because it is not narrowly
tailored to serve any compelling government interest.
As a facially content-based restriction of expression at traditional public fora,
Section 17-142 is presumptively unconstitutional unless Defendant “prove[s] that the
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restriction furthers a compelling interest and is narrowly tailored to achieve that
interest.” Reed, 135 St. Ct. at 2231; accord Johnson, 491 U.S. at 412.
Section 17-142 does not contain a provision that describes its purposes or the
government’s interests. The Fort Collins City Council’s discussions from October 20,
2015, reveal that Defendant considered two possible interests when enacting Section
17-142: morality and anti-exploitation. Neither can justify Section 17-142’s
infringements on First Amendment rights.
Section 17-142 is classified in the Fort Collins Code of Ordinances as an
“Offense against Decency[.]”See FORT COLLINS,CO., MUN.CODE § 17-142 (2016).
Nearly everyone who spoke out against allowing female toplessness at public places in
Fort Collins during the public comment portion of the October 20, 2015, city council
meeting articulated morality as the reason to continue criminalizing female toplessness
in Fort Collins. See Exhibit 1, at pp. 7-11. One councilmember in particular openly
disparaged Plaintiffs’ expressive activities as immoral, asking the rhetorical question of
“why minors should be exposed to live nudity when they are not allowed to be exposed
to print nudity.” See Id., at p. 12. In other examples of the puritanical reasoning
underlying the reauthorization of Section 17-142, in an email exchanges,
Councilmember Ray Martinez and Mayor Wade Trozell agree with members of the
public that the criminalization of the female breast and nipple should be continued for
purposes of maintaining decency and morality in the City of Fort Collins. See Exhibit
2; Exhibit 3.
Defendant’s interest in morality is not compelling. The United States Supreme
Court has stated “the fact that the governing majority in a State has traditionally viewed
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a particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice.” Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting Bowers
v. Hardwick, 478 U.S. 186, 216 (1986); See generally Loving v. Virginia, 388 U.S. 1
(1967); Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Moral disapproval of a speaker’s
message is not a compelling interest under the First Amendment. See, e.g., Spence, 418
U.S. at 412 (quoting Street v. New York, 394 U.S. 576, 592 (1969)) (“It is firmly settled
that under our Constitution the public expression of ideas may not be prohibited merely
because the ideas are themselves offensive to some of their hearers.”); Johnson, 491
U.S. at 414 (holding that, as a “bedrock principle,” the First Amendment prohibits
censorship of expression based on its “offensive or disagreeable” nature); See also
Mark Cenite, Federalizing or Eliminating Online Obscenity Law as an Alternative to
Contemporary Community Standards, 9 Comm. L. & Pol'y 25, 68-69 (2004). Any
purported government interest in morality does not trump Plaintiff’s First Amendment
rights.
Furthermore, Section 17-142 is not narrowly tailored to serve any purported
interest in preserving morality. Section 17-142 is underinclusive. Section 17-142 does
not prevent the public display of male breasts that may look and act the same as female
breasts, which must be covered.2
This provision does not comport with the city’s
purported interest in maintaining a “family-friendly” community, as it appears to define
2 Medical consensus shows that male and female breasts are identical in appearance and
function until puberty, and even after puberty there are instances of male breasts
appearing and functioning like female breasts, some being capable of lactation. See
Alexander N. Sencha, et al., Imaging of Male Breast Cancer 17-23 (Springer
International Publishing 2015) (2015) (describing the anatomy, physiology, and
development of the male breast). Section 17-142 is underinclusive because it does not
address these situations.
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that term. Moreover, Section 17-157 attempts to solve a problem already remedied by a
Colorado Statute prohibiting public indecency, which criminalizes “[a] lewd exposure
of an intimate part... of the body, not including genitals, done with intent to arouse or
satisfy the sexual desire of any person.” See C.R.S. § 18-7-301. Thus, not only does
Defendant’s “morality” justification fall short of being a compelling government
interest, but Section 17-142 is also not narrowly tailored to that interest.
Finally, Section 17-142 is not narrowly tailored to Defendant’s interest in
protecting women and children from exploitation. Section 17-142 is underinclusive to
the extent that it fails to prevent the potential exploitation of young females under the
age of ten (and all young males), who are not required to conceal their breasts. Section
17-142 is overinclusive because it chills expression (such as Plaintiffs’ demonstrations)
against the exploitation and sexualization of women’s bodies. Consequently, Section
17-142 undermines Defendant’s interest in preventing the exploitation of women and
children. All in all, Defendant cannot show that Section 17-142 is narrowly tailored to
any compelling government interest. For this reason, Plaintiffs are likely to succeed on
the merits of their First Amendment claim.
v. Section 17-142 fails even under the more deferential O’Brien test.
Even if Section 17-142 were to trigger the test for content-neutral restrictions of
expression under United States v. O’Brien, 391 U.S. 367 (1968), Section 17-142 is still
unconstitutional. See Foxxxy Ladyz Adult World, Inc. v. Vill. of Dix, 779 F.3d 706, 711
(7th Cir. 2015) (applying O’Brien to “municipality-wide regulations of public nudity”).
Under O’Brien, a content-neutral restriction of expression is constitutional only if: (1)
the restriction “is within the constitutional power of the Government,” (2) the
restriction “furthers an important or substantial governmental interest,” (3) “the
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governmental interest is unrelated to the suppression of free expression,” and (4) “the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.” 391 U.S. at 377. While Plaintiffs do not
contest Defendant’s constitutional authority to enact an indecent exposure ordinance,
Section 17-142 fails under three of the four O’Brien factors.
First, Section 17-142 does not “further[] an important or substantial
governmental interest.” Id. Defendant’s interest in morality is not “important or
substantial” because the First Amendment does not deny protection for morally
offensive expression. See, e.g., Johnson, 491 U.S. at 414; Spence, 418 U.S. at 412;
Street, 394 U.S. at 592. Even assuming (without conceding) that Defendant’s interest in
morality is important or substantial, Section 17-142 still fails under this O’Brien factor.
This is because Defendant cannot “produce some specific, tangible evidence
establishing a link between the regulated activity and harmful secondary effects.”
Tagami, 2015 WL 4187209, at *3 (finding that defendant City of Chicago failed to
defend its content-neutral public nudity law under O’Brien). Section 17-142 undermines
Defendant’s purported interest in morality because of the permissive exposure of male
breasts.
Second, Defendant’s justification is directly and impermissibly related to the
suppression of free expression. See Spence, 418 U.S. at 406 (“The government . . . may
not . . . proscribe particular conduct because it has expressive elements.”); see also
Johnson, 491 U.S. at 407 (finding that Texas’ anti-flag-burning statute was related to
the suppression of expression). Section 17-142’s reauthorization is a direct reaction to
Plaintiffs’ expressive activity. Nearly every councilmember who spoke about Section
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17-142 noted the expressive conduct of the Plaintiffs. Accordingly, Section 17-142 fails
under O’Brien because Defendant cannot claim that Section 17-142 is unrelated to the
suppression of free expression.
Third, the restriction on Plaintiffs’ First Amendment freedoms is greater than
necessary to further Defendant’s interests. For the same reasons described above,
Section 17-142 is not narrowly tailored to Defendant’s interests. Defendant could
advance its interests with less restrictive means, such as through an educational
initiative, or simply by warning citizens about Plaintiffs’ protests. See, e.g., Spence,
418 U.S. at 412 (“[A]ppellant did not impose his ideas upon a captive audience. Anyone
who might have been offended could easily have avoided the display.”). In sum, Section
17-142 fails three of the four O’Brien factors, and failing even one makes Section 17-
142 unconstitutional. 391 U.S. at 376-77. Accordingly, even if Section 17-142 is
viewed as a content-neutral restriction, it fails scrutiny under O’Brien.
B. Section 17-142 of the Fort Collins Code of Ordinances violates the
Equal Protection Clause.
Section 17-142 violates the Equal Protection Clause of the Fourteenth
Amendment because it is a gender-based classification neither supported by, nor
substantially related to, a constitutionally sufficient justification. The ordinance creates
a gender-based classification that does not serve any important governmental objective
and that is not substantially related to the achievement of any such objective. See, e.g.,
United States v. Virginia, 518 U.S. 515, 532-33 (1996); Lawson v. Kelly, 58 F. Supp. 3d
923, 934-35 (W.D. Mo. 2014). Defendant cannot deny that Section 17-142 creates a
gender-based classification. See FORT COLLINS,CO., MUN.CODE § 17-142 (2016).
Therefore, Defendant bears the burden of establishing an “exceedingly persuasive
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justification” for making such a classification. See Virginia, 518 U.S. at 524 (quoting
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).
Defendant has no persuasive justification for criminalizing women—and only
women—for certain conduct. Defendant also cannot show that the ordinance is related
to the achievement of any legitimate governmental interest. Section 17-157
“perpetuate[s] the legal[] [and] social . . . inferiority of women,” Virginia, 518 U.S. at
533-34, by being wielded as a tool to shut down Plaintiffs protests against the precise
type of invidious legal discrimination they believe the City of Fort Collins already
codified by stigmatizing women’s bodies. Section 17-157 “is a status-based enactment
divorced from any factual context from which we could discern a relationship to
legitimate state interests; it is a classification of persons undertaken for its own sake,
something the Equal Protection Clause does not permit.” Romer v. Evans, 517 U.S. 620,
635 (1996). It is not substantially related to any constitutionally sufficient justification
and, therefore, violates the Equal Protection clause.
C. Section 17-142 of the Fort Collins Code of Ordinances violates
Colorado’s Equal Rights Amendment.
In Colorado, codified distinctions based solely on sex are prohibited. Colo.
Const. Art. II, Section 29; Colo. Civil Rights Com. v. Travelers Ins. Co., 759 P.2d 1358,
1363 (Colo. 1988) (holding Equal Rights Amendment, “prohibits unequal treatment
based solely on circumstances of sex”); see also People v. Salinas, 191 Colo. 171, 551
P.2d 703 (1976). The Equal Rights Amendment also requires that any “legislative
classifications based exclusively on sexual status receive the closest judicial
scrutiny.” People v. Green, 183 Colo. 25, 514 P.2d 769 (1973). Clearly, Section 17-142
classifies whether exposing the breast below the areola or nipple is a crime solely on
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the basis of one’s sexual status. It is therefore subject to strict scrutiny. See FORT
COLLINS,CO., MUN.CODE § 17-142 (2016) (“No female who is ten (10) years of age or
older shall knowingly appear in any public place with her breast exposed below the top
of the areola and nipple[.]”)
For the reasons outlined in Section II(A)(iv) of this briefing, supra, Section 17-
142 cannot withstand strict scrutiny. It cannot even withstand heightened scrutiny. See
Section II(B), supra. Section 17-142, on its face, violates Art. II, Section 29 of the
Colorado Constitution, rendering it unenforceable.
III. Plaintiffs satisfy the remaining preliminary injunction factors.
Plaintiffs’ likelihood of success on the merits of their First Amendment and
Equal Protection claims is enough to grant the preliminary injunction. Minnesota
Citizens Concerned for Life, Inc., 692 F.3d 864 at 877. Nevertheless, Plaintiffs also
satisfy the remaining factors in favor of granting a preliminary injunction.
Plaintiffs meet the second factor, “irreparable harm,” because they have already
been injured by the chilling effect on their expressive conduct and the continued
enforcement of the ordinance subjects them to discrimination on the basis of sex. Elrod
v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”); see also Awad
v. Ziriax, 670 F.3d 1111, 1131 (10th Cir.2012) (“[W]hen an alleged constitutional right
is involved, most courts hold that no further showing of irreparable injury is
necessary.”). When First Amendment rights are burdened, there is a presumption of
irreparable harm. See Cmty. Communications v. City of Boulder, 660 F.2d 1370, 1376
(10th Cir. 1981); Johnson, 194 F.3d at 1163. Absent an injunction, Plaintiffs would face
citation, arrest, and prosecution under Section 17-142 for continuing their expressive
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activities. Because Plaintiffs have established that they are likely to succeed on the
merits, they have also established irreparable harm as the result of the deprivation of
their First Amendment rights. See, e.g., Cmty. Communications, 660 F.2d at 1376;
Johnson, 194 F.3d at 1163.
Plaintiffs meet the third factor because Plaintiffs’ injury outweighs any potential
harm to Defendant. “The balance of equities . . . generally favors the constitutionally-
protected freedom of expression.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir.
2008), overruled on other grounds by Phelps-Roper v. City of Manchester, 697 F.3d
678 (8th Cir. 2012); see also Awad, 670 F.3d at 1132 (“Delayed implementation of a
[governmental] measure that does not appear to address any immediate problem will
generally not cause material harm, even if the measure were eventually found to be
constitutional and enforceable.”). There is no harm to Defendant by implementation of
an injunction; in fact, Defendant has no significant interest in enforcing Section 17-142
because it is likely unconstitutional. See Awad v. Ziriaz, 670 F.3d 1111, 1131-32 (10th
Cir. 2012); Johnson, 194 F.3d at 1163.
Finally, Plaintiffs meet the fourth factor, showing that a preliminary injunction is
in the public interest. Injunctions blocking state action that would otherwise interfere
with First Amendment rights are consistent with the public interest. Elam Constr. v.
Reg. Transp. Dist., 129 F.3d 1343, 1347 (10th Cir.1997)(“The public interest...favors
plaintiffs’ assertion of their First Amendment rights.”); Utah Licensed Beverage Ass’n,
256 F.3d at 1076; Johnson, 194 F.3d at 1163; Local Org. Comm., Denver Chap., Million
Man March v. Cook, 922 F. Supp. 1494, 1501 (D. Colo. 1996). Additionally, “it is
always in the public interest to prevent a violation of a party’s constitutional
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18
rights.” Awad, 670 F.3d at 1132; Phelps-Roper, 545 F.3d at 689. Preventing Section 17-
142’s likely unconstitutional enforcement while this case is pending serves the public
interest.
CONCLUSION
For the reasons stated, Plaintiffs respectfully request that this Court grant their
Motion for a Preliminary Injunction, enjoin enforcement of Section 17-142, and
prohibit Defendants from discriminatorily arresting Plaintiffs and all others similarly
situated when they engage in the protected activity of standing topless at public places
in Fort Collins, Colorado.
Dated this 31st day of May, 2016.
KILLMER,LANE &NEWMAN,LLP
s/ David A. Lane
David A. Lane
Andy McNulty
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
dlane@kln-law.com
amcnulty@kln-law.com
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 31st day of May, 2016, a true and correct copy of
the foregoing MOTION FOR PRELIMINARY INJUNCTION, was filed with the Clerk of
Court using the CM/ECF system, and a copy will be sent via email to the following:
Fort Collins City Attorney
s/ David A. Lane
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Serial #: 93950 printed by councilemail@fcgov.com on 2015-11-22 21:49:58
Audit Trail [MST] Username Event Comment
Oct 13 2015 05:18:50PM Global Relay Archive Imported Message #93950: Received from Mail Server
Subject : Re: Topless in Ft Collins. Please take the time to read as I have taken the time to write.
From : Ray Martinez <raymartinez@fcgov.com>
Date : 1 month ago Tue, 13 Oct 2015 17:15:54 -0600
To : J Mo <m16spr@gmail.com>
Folder : Council Email*
I certainly agree with you. The story has been sensationalized. We do need to update the
ordinance so it is constitutionally sound. Right now, it won't meet the test. This came up
because two women came to council and wants the ordinance changed to allow toplessness, but no one
else that I know of.
Councilor Ray Martinez
District-2 City Council
raymartinez31@comcast.net<mailto:raymartinez31@comcast.net>
970.690.3686 | www.raymartinez.com<http://www.raymartinez.com>
Sent from my iPad
With limited exceptions, emails and any files transmitted with them are subject to public
disclosure under the Colorado Open Records Act (CORA). To promote transparency, emails will be
visible in an online archive, unless the sender puts #PRIVATE in the subject line of the email.
However, the City of Fort Collins can’t guarantee that any email to or from Council will remain
private under CORA.
[City Council Logo v2]
On Oct 13, 2015, at 5:08 PM, J Mo <m16spr@gmail.com<mailto:m16spr@gmail.com>> wrote:
To whom it may concern,
I am male, 36 years old, and just like every other male on the planet I like breasts. However,
I do not feel that the proposed change is good. I have 2 daughters, 13 & 10. I live in Loveland
and travel to shop and eat in Ft. Collins regularly. I am finding it hard to fathom the impact
that this would have on our society. How am I going to be able to teach my daughters about self
decency. How am I to teach them that they are not an object of lust. The ramifications would be
horrible if this were to pass. Society as it is already has young girls wearing next to nothing
and thinking that it is o.k. to have shorts that barely cover up anything, or shirts that are see
through that leaves nothing to the imagination. I am trying to raise my children with self
respect and dignity. That is going to be hard to do when we are enjoying a family walk down town
to go eat and half naked women are walking down the street.
I urge you to consider our community's children and how it will negatively impact their lives
before making a decision.
Yes I am male, I am an army veteran, I served with women, women who are equal to me in every way.
This is not a sexist email . This is an email about protecting my children.
Thank you for your time,
J Mo
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Audit Trail [MST] Username Event Comment
Oct 07 2015 07:48:12PM Global Relay Archive Imported Message #92934: Received from Mail Server
Subject : Re: Women going topless in Ft. Collins
From : Wade Troxell <WTroxell@fcgov.com>
Date : 1 month ago Wed, 7 Oct 2015 19:46:52 -0600
To : Gobble Gene <gene@gobblefamily.com>
Folder : Council Email*
Yes, one option is to keep status quo with improved language with definitions.
Regards,
Wade
Wade O. Troxell
Mayor, City of Fort Collins
-----
With limited exceptions, emails and any files transmitted with them are subject to public
disclosure under the Colorado Open Records Act (CORA). To promote transparency, emails will be
visible in an online archive, unless the sender puts #PRIVATE in the subject line of the email.
However, the City of Fort Collins can’t guarantee that any email to or from Council will remain
private under CORA.
-----
Sent from my iPad
On Oct 7, 2015, at 1:39 PM, Gobble Gene <gene@gobblefamily.com<mailto:gene@gobblefamily.com>>
wrote:
Thank you Wade so much for a quick reply. Will you be able to block the implementation of going
topless?
Gene
Gene and Rhonda:
Thanks for your email. I agree with your sentiments and concerns. I support the update revision
of our current version of the ordinance.
REgards,
Wade
Wade Troxell
Mayor, City of Fort Collins, Colorado
Wade,
I saw the article in the paper this morning about the possibly of letting women go topless around
Ft. Collins.
That is the most absurd thing I have heard since I moved here years ago. Why would any citizen
here
with any kind of morals want that or want to allow that? This would take the morality of our city
down
the tubes. I don’t want to see topless women as I go around town and my wife does not want me to
see
topless women as we go around town together and I certainly don’t want my children or
grandchildren
to see topless women around town. This will accomplish nothing good and cause a lot of harm to
the
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families of our community. If women want equality, then require men to wear shirts out in public.
That
would be an improvement too. Please don’t let this happen?
Thank you,
Gene & Rhonda Gobble
1420 Snook Court
Ft. Collins 80526
Home: 970-225-8115
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 16-cv-01308-RBJ
FREE THE NIPPLE – FORT COLLINS, an unincorporated association,
BRITTIANY HOAGLAND, and
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
ORDER
Plaintiffs seek a preliminary injunction enjoining the City of Fort Collins from enforcing
an ordinance prohibiting women from exposing their breasts in public other than for purposes of
breastfeeding. I conclude that it is likely, absent some significant new evidence not heretofore
submitted by defendant, that I will ultimately find at trial that the ordinance violates the Equal
Protection Clause of the United States Constitution. I also find that the other factors courts must
assess in deciding a motion for a preliminary injunction weigh heavily in plaintiffs’ favor.
Therefore, plaintiffs’ motion is GRANTED.
I. BACKGROUND
Brittiany Hoagland, Samantha Six, and Free the Nipple—describing itself as an
unincorporated association of individuals—challenge § 17-142(b) of the Fort Collins Municipal
Code. Prior to October 20, 2015 § 17-142 provided that “[n]o person shall knowingly appear in
any public place in a nude state or state of undress such that the genitals or buttocks of either sex
or the breast or breasts of a female are exposed.” Fort Collins, CO., Mun. Code § 17-142 (2011).
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2
Arguing that the ordinance unduly discriminated against women, plaintiffs and others held a
protest of the law on August 23, 2015 on the corner of College Avenue and Mulberry Street in
downtown Fort Collins. Complaint, ECF No. 1 at ¶26. The protestors exposed the top half of
their bodies with the exception of their nipples and breast which they covered with opaque
dressings. Plaintiffs suggest that their manner of dress at the protest complied with § 17-142 but
was meant to send the message that this ordinance was “borne of tired sex stereotypes, double
standards, hypocrisies, and the hyper-sexualization (primarily by men) of women’s breasts.” Id.
They inform the Court that their protest is part of a growing movement around the country that
seeks to overturn similar laws that allow men and boys to expose their breasts and nipples in
public but criminalize women and girls who do the same.
In reaction to the protest, defendant allegedly considered repealing the law. Id. at ¶25.
Instead, however, on or about November 3, 2015 the Fort Collins City Council enacted
Ordinance No. 134. It provides:
No female who is ten (10) years of age or older shall knowingly appear in any
public place with her breast exposed below the top of the areola and nipple while
located: (1) in a public right-of-way, in an natural area, recreation area or trail, or
recreation center, in a public building, in a public square, or while located in any
other public place; or (2) on private property if the person is in a place that can be
viewed from the ground level by another who is located on public property and
who does not take extraordinary steps, such as climbing a ladder or peering over a
screening fence, in order to achieve a point of vantage.
Fort Collins, CO., Mun. Code § 17-142(b) (2015). The municipal code defined a “public place”
to mean:
[A] place in which the public or a substantial number of the public has access, and
includes but is not limited to highways including sidewalks, transportation
facilities, schools, places of amusement, parks, playgrounds and the common
areas of public and private buildings and facilities, and shall not include any
theater, concert hall, museum, school or similar establishment to the extent the
same is serving as a performance venue.
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3
Id. § 17-142(a)(3). This modification also exempted from the law’s coverage women who are
breastfeeding in places they are legally entitled to be. Id. § 17-142(d).
The modification of § 17-142 did little to mollify plaintiffs’ concerns. ECF No. 1 at
¶38.
1
They contend that by implementing the new version the City Council “continu[es] the
criminalization of women who appear at public places with their breasts and nipples exposed.”
Id. Significantly, plaintiffs point out that § 1-15 of the Fort Collins Code of Ordinances provides
that each violation of § 17-142 is punishable by “a fine not exceeding two thousand six hundred
fifty dollars ($2,650.00) or by imprisonment not exceeding one hundred eighty (180) days, or by
both such fine and imprisonment, in addition to any costs which may be assessed.” Id. at ¶40.
They allege that § 17-142 is consequently “one of the most restrictive public nudity ordinances
in the nation.” Id. at ¶41.
Plaintiffs’ complaint and motion for a preliminary injunction were filed on May 31, 2016.
On August 2, 2016 defendant filed a motion to dismiss the entirety of plaintiffs’ complaint. On
October 20, 2016 the Court granted the motion in part, dismissing plaintiffs’ First Amendment
claim, but otherwise denying it. The Court held a hearing on plaintiffs’ pending motion for a
preliminary injunction on December 19, 2016. ECF No. 48 (hearing minutes). That motion is
the subject of this Order.
II. ANALYSIS
To succeed on a motion for a preliminary injunction, the movant must demonstrate the
following four factors:
(1) a substantial likelihood of success on the merits of the case; (2) irreparable
injury to the movant if the preliminary injunction is denied; (3) the threatened
injury to the movant outweighs the injury to the other party under the preliminary
injunction; and (4) the injunction is not adverse to the public interest.
1 For ease of use the Court will refer to § 17-142(b) and Ordinance No. 134 simply as “§ 17-142.”
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Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). However, an injunction that alters the
status quo and affords the movants all of the relief they could recover at the conclusion of a full
trial on the merits, as is the case here, “must be more closely scrutinized to assure that the
exigencies of the case support the granting of a remedy that is extraordinary even in the normal
course.” Id. Plaintiffs “must [therefore] make a strong showing both with regard to the
likelihood of success on the merits and with regard to the balance of harms[.]” See, e.g., O
Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004)
(en banc) aff’d and remanded sub nom. Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418 (2006) (citation omitted). I address each factor in turn.
A. First Factor: Likelihood of Success on the Merits.
The Equal Protection Clause of the Fourteenth Amendment bars state governmental
entities from discriminating between the sexes unless they have an “exceedingly persuasive
justification” for doing so. See United States v. Virginia, 518 U.S. 515, 524 (1996); KT.& G
Corp v. Attorney Gen. of State of Okla., 535 F.3d 1114, 1137 (10th Cir. 2008). Phrased
somewhat differently, the government’s rationale for distinguishing between males and females
must satisfy the intermediate scrutiny standard of being “substantially related” to an “important
governmental interest.” Id.
This heightened standard bars governments from discriminating on the basis of supposed
“differences” between the sexes when doing so is a means of “creat[ing] or perpetuat[ing] the
legal, social, and economic inferiority of women.” Virginia, 518 U.S. at 534. Indeed, as the
Supreme Court has made “abundantly clear in past cases[,] . . . gender classifications that rest on
impermissible stereotypes violate the Equal Protection Clause, even when some statistical
support can be conjured up for the generalization.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
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139 n.11 (1994). See also Miss. Univ. for Women v. Hogan, 458 U.S. 718, 726 (1982)
(explaining that “[t]he purpose” of intermediate scrutiny is to make sure that sex-based
classifications are based on “reasoned analysis rather than . . . traditional, often inaccurate,
assumptions about the proper roles of men and women.”).
In this case, Fort Collins has on the books an ordinance that on its face discriminates
against women. The City has nevertheless justified its ordinance in two interrelated ways. See
Def.’s Mot. to Dismiss, ECF No. 18 at 13–20. First, it argues that the law satisfies intermediate
scrutiny because it is necessary in order to maintain “public order” and to “protect children.”
See, e.g., Reply to Pls.’ Resp. to Def.’s Hr’g Br., ECF No. 51 at ¶¶6–7. Second, it contends that
discriminating between male and female breasts does not raise an equal protection issue because
men and women are not similarly situated when it comes to their breasts. See, e.g., Def.’s Hr’g
Br., ECF No. 47 at 4. In other words, Fort Collins believes there is a “real” and constitutionally
significant difference between male and female breasts. Id. at 8.
On defendant’s first argument, I find that the evidence Fort Collins has presented about
these governmental interests amounts to little more than speculation. For instance, during the
hearing defendant called Assistant Police Chief Jerome Schager who testified that topless
females in public likely might cause distracted driving and traffic issues that disrupt public order.
There are many things that could potentially distract drivers and disrupt traffic, but the
constitutional issue is whether there is such a threat to public order that it rises to the level of an
important government interest. Frankly, without any significant evidence on this point, I’m
skeptical that it does. Rather, it appears that underlying Fort Collins’s belief that topless females
are uniquely disruptive of public order is the same negative stereotype about female breasts that I
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6
discuss in more depth later—namely, that society considers female breasts primarily as objects of
sexual desire whereas male breasts are not.
Nor has Fort Collins provided any meaningful evidence that the mere sight of a female
breast endangers children. The female breast, after all, is one of the first things a child sees. Of
course, those are very young children, but children of any age might come upon a woman
breastfeeding a child and see a naked breast. Yet no one suggests that they are harmed by that
experience. Indeed, public breastfeeding is permitted by Colorado law. See C.R.S. § 25-6-302
(“A mother may breast-feed in any place she has a right to be.”). It seems, then, that children do
not need to be protected from the naked female breast itself but from the negative societal norms,
expectations, and stereotypes associated with it.
The City could have looked for such evidence. Both Denver and Boulder, for example,
have laws that permit what plaintiffs here seek, as do many other jurisdictions within Colorado
and around the country. See ECF No. 1 at ¶24. Presumably, these places have experiences and
evidence to share. But during the hearing, representatives of Fort Collins admitted that they had
made no effort to contact either of these neighboring cities or any other jurisdiction to see what
their experiences have been. Simply put, Fort Collins has not shown the Court that a law
permitting public exposure of female breasts would have a significantly negative impact on the
public.
Frankly, even if this ordinance were not on the books I doubt that women would be
regularly walking through downtown Fort Collins with their breasts exposed, or parading in front
of elementary schools, or swimming topless in the public pool, as defendant cautioned us during
the hearing. As with many other legal behaviors, common sense and sensitivity to the feelings of
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7
others tells us that there is a time and a place.
2
It seems to me that the primary focus here is the
equal right of women to expose their breasts in public, not necessarily a plan to make it an
everyday, everywhere routine.
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, see,
e.g., Ways v. City of Lincoln, 331 F.3d 596 (8th Cir. 2003) (Lincoln, NE ordinance); City of
Albuquerque v. Sachs, 92 P.3d 24 (N.M. App. 2004) (Albuquerque, NM ordinance), and that
striking down the law would upset many Fort Collins residents. 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. See Lawrence v. Texas, 539 U.S.
558, 577 (2003). See also Craig v. Boren, 429 U.S. 190, 210 n.23 (1976) (disapproving of the
holding in Goesaert v. Cleary, 335 U.S. 464(1948), in which the Supreme Court earlier upheld a
Michigan law that barred women from bartending that was justified on the grounds that the sight
of female bartenders caused “moral and social problems”).
I turn next to the City’s second argument, essentially that there are inherent physical
differences between male and female breasts. Of course there are. The most obvious difference
is that female breasts have the potential to nourish children, whereas male breasts do not. Dr.
Tomi-Ann Roberts, the Chair of the Psychology Department at Colorado College, testified at the
preliminary injunction hearing that, aside from that difference, the sexes are in large part
2 I do not address an entirely different subject –regulation of pornography. This Order does not restrict
Fort Collins’ ability to enforce other statutes that bar individuals from exposing themselves indecently in
public. However, Fort Collins has produced no credible evidence that the public display of a female
breast is necessarily pornographic. This order simply prohibits Fort Collins from punishing women, but
not men, for appearing in public topless absent any other unlawful behavior or intent.
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similarly situated when it comes to their breasts. It would be naïve, however, for this Court not
to recognize that there are physical differences between male and female breasts.
3
But while
inherent physical differences can in some circumstances be a permissible basis for differential
treatment by the government, see Virginia, 518 U.S. at 533, that is not the difference between the
sexes on which § 17-142 is based.
Rather, based on the present record, I find that the ordinance discriminates against
women based on the generalized notion that, regardless of a woman’s intent, the exposure of her
breasts in public (or even in her private home if viewable by the public) is necessarily a
sexualized act. Thus, it perpetuates a stereotype engrained in our society that female breasts are
primarily objects of sexual desire whereas male breasts are not. See, e.g., People v. Santorelli,
600 N.E.2d 232, 237 (N.Y. 1992) (Titone, J. concurring) (acknowledging this perception and
remarking that it is “a suspect cultural artifact rooted in centuries of prejudice and bias toward
women”); see also Williams v. City of Fort Worth, 782 S.W.2d 290, 297 (Tex. App.—Fort Worth
1989) (noting “the concept that the breasts of female[s] . . . unlike their male counterparts, are
commonly associated with sexual arousal” but explaining that, in reality, this is “a viewpoint . . .
subject to reasonable dispute, depending on the sex and sexual orientation of the viewer”).
At the hearing, Dr. Roberts, a twenty-five-year veteran of research into this issue,
testified that such a stereotype is created through sexual objectification of women. Research, she
tells us, shows that sexual objectification of women leads to negative cognitive, behavioral, and
emotional outcomes for both women and men. She opined that sexual objectification of the
female breast contributes to higher rates of sexual assault and violence, as it tends to make
3 The City informed the Court, for example, that after puberty “the tactile sensitivity of all areas of a
woman’s breasts is significantly greater than a man’s.” ECF No. 47 at 9 (citing J.E. Robinson & R.V.
Short, Changes of breast sensitivity at puberty, during the menstrual cycle, and at parturition, British
Medical Journal (1977) 1, 1188–91). That is not the only physical difference between a typical male and
female breast.
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younger and younger females appropriate sexual targets. She was asked what societal purpose
there was for viewing female breasts as sexual objects. Her response: “It serves the function of
keeping women in their place.”
At bottom this ordinance is based upon ipse dixit—the female breast is a sex object
because we say so. That is, the naked female breast is seen as disorderly or dangerous because
society, from Renaissance paintings to Victoria’s Secret commercials, has conflated female
breasts with genitalia and stereotyped them as such. The irony is that by forcing women to cover
up their bodies, society has made naked women’s breasts something to see.
Admittedly, other courts that have confronted laws similar to § 17-142 have supported
either or both of Fort Collins’ arguments. See, e.g., Hang On, Inc. v. City of Arlington, 65 F.3d
1248, 1257 (5th Cir. 1995) (“Courts need no evidence to prove self-evident truths about the
human condition—such as water is wet. . . . The district court correctly concluded that
Arlington’s definition of nudity [to exclude male breasts] did not discriminate against women
solely on the basis of gender.”); Buzzetti v. City of N.Y., No. 96 CIV. 7764 (JSM), 1997 WL
164284, at *4 (S.D.N.Y. Apr. 8, 1997), aff’d, 140 F.3d 134 (2d Cir. 1998) (“Rightly or wrongly,
our society continues to recognize a fundamental difference between the male and female
breast.”) (emphasis added); Tolbert v. City of Memphis, 568 F. Supp. 1285, 1290 (W.D. Tenn.
1983) (“In our culture, for the purpose of this type of ordinance [barring public female
toplessness at beaches], female breasts are a justifiable basis for a gender-based classification.”)
(emphasis added). I respect those courts and their decisions. Reasonable minds can differ.
But I do not accept the notion, as some of those courts have, that we should continue a
stereotypical distinction “rightly or wrongly,” or that something passes constitutional muster
because it has historically been a part of “our culture.” We would not say that, rightly or
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wrongly, we should continue to recognize a fundamental difference between the ability of males
and females to serve on juries. See J.E.B., 511 U.S. at 127. Or between male and female estate
administrators. See Reed v. Reed, 404 U.S. 71 (1971). Or between military cadets. See
Virginia, 518 U.S. at 515. Or between the ability of males and females to practice law.
Bradwell v. People of State of Ill., 83 U.S. 130 (1872). Nor should we here.
After much thought, I have concluded that going out on this lonely limb is the right thing
to do. I have no more right to fall back on “the way we have always done it” than others who
have reassessed their thinking. See Frontiero v. Richardson, 411 U.S. 677, 685 (1973) (“As a
result of notions such as [women should occupy the ‘domestic sphere’ whereas men should
occupy ‘civil life’], our statute books gradually became laden with gross, stereotyped distinctions
between the sexes.”). I find that plaintiffs have put forward a convincing case that § 17-142 is
based on an impermissible gender stereotype that results in a form of gender-based
discrimination. I therefore conclude that plaintiffs have demonstrated a strong likelihood that
they will succeed at the permanent injunction trial in establishing that § 17-142 as enacted
violates the Equal Protection Clause of the United States Constitution.
4
B. Factor Two: Irreparable Injury to the Movant.
One might ask, how can there be an irreparable injury if plaintiffs are prohibited until a
final trial on the merits from doing what they have been unable to do for centuries? The short
4 Plaintiffs also argue that the Fort Collins ordinance violates the Equal Rights Amendment of the
Colorado Constitution. That Amendment reads: “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.” Colo. Const. art.
II, § 29. Under the Equal Rights Amendment “legislative classifications based solely on sexual status
must receive the closest judicial scrutiny.” People v. Green, 514 P.2d 769, 770 (Colo. 1973) (citing
Frontiero, 411 U.S. 677 (1973); Reed v. Reed, 404 U.S. 71 (1971)); see also People v. Salinas, 551 P.2d
703, 706 (Colo. 1976) (“[The Colorado Equal Rights Amendment] prohibits unequal treatment based
exclusively on the circumstance of sex, social stereotypes connected with gender, and culturally induced
dissimilarities.”). However, because I have concluded that the ordinance violates the federal constitution,
I need not reach or decide the state constitutional issue. That determination is best left to the Colorado
courts.
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answer is that any infringement of one’s constitutional rights inflicts an irreparable injury. See
Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that the denial of a constitutional right “for
even minimal periods of time, unquestionably constitutes irreparable injury”); Adams By &
Through Adams v. Baker, 919 F. Supp. 1496, 1505 (D. Kan. 1996) (finding that a plaintiff had
demonstrated irreparable injury where her school refused to allow her to join the wrestling team
because of the “injury inherent in a denial of [the] constitutional right[]” to equal protection); see
also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (3d ed. 2014)
(“When an alleged deprivation of a constitutional right is involved . . . most courts hold that no
further showing of irreparable injury is necessary.”) (footnotes omitted); Awad v. Ziriax, 670
F.3d 1111, 1131 (10th Cir. 2012) (same); Battle v. Mun. Hous. Auth. for City of Yonkers,53
F.R.D. 423, 429 (S.D.N.Y. 1971) (“Whenever constitutional rights as basic as those here asserted
are denied [i.e. equal protection], each day’s damage is irreparable.”).
C. Factor Three: Balance of Injuries.
Similarly, I find the balance of injuries weighs strongly in plaintiffs’ favor. As discussed
above, any time the government denies a person a constitutional right or protection, that person’s
injury is serious. See, e.g., Elrod, 427 U.S. at 373. By comparison, the injury to defendant is
minimal. Defendant contends that many inhabitants of Fort Collins do not approve of allowing
topless females in public. See ECF No. 19 at 29–30. Acknowledging that for many people
prohibiting females to be topless in public remains a significant issue of personal morality, I find
that such concerns are outweighed by the constitutional rights of others. See 11A Charles Alan
Wright et al., Federal Practice and Procedure § 2948.2 (“[W]hen plaintiff is claiming the loss of
a constitutional right, courts commonly rule that even a temporary loss outweighs any harm to
defendant and that a preliminary injunction should issue[.]”).
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D. Factor Four: Public Interest.
Finally, with respect to whether this preliminary injunction is in the public interest, I note
that, as many courts have too explained, “it is always in the public interest to prevent the
violation of a party’s constitutional rights.” See, e.g., Connection Distrib., Co. v. Reno, 154 F.3d
281, 288 (6th Cir. 1998) (First Amendment); Strawser v. Strange, 44 F. Supp. 3d 1206, 1210
(S.D. Ala. 2015) (Fourteenth Amendment). Thus, I find the fourth factor also weighs in
plaintiffs’ favor.
CONCLUSION AND ORDER
Finding that all four factors weigh in plaintiffs’ favor, and having applied the extra
scrutiny that an injunction of this type requires, I grant plaintiffs’ motion for a preliminary
injunction. ECF No. 2. Pending a final trial on plaintiffs’ request for a permanent injunction, or
other resolution, the Court enjoins the City of Fort Collins from enforcing § 17-142(b) of the
Fort Collins Municipal Code or Ordinance No. 134 to the extent that it prohibits women, but not
men, from knowingly exposing their breasts in public.
DATED this 22nd day of February, 2017.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01308-RBJ-KLM
FREE THE NIPPLE – FORT COLLINS,
BRITTIANY HOAGLAND,
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
DEFENDANT’S NOTICE OF APPEAL
Defendant City of Fort Collins, Colorado, by and through its counsel, Andrew D. Ringel,
Esq., Gillian Dale, Esq. and Christina S. Gunn, Esq. of Hall & Evans, L.L.C., pursuant to 28
U.S.C. 1292(a)(1), Fed. R. App. P. 3, and Fed. R. App. P. 4, hereby appeals the District Court’s
Order dated February 22, 2017, granting the Plaintiffs’ Motion for Preliminary Injunction. [ECF
53].
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2
Dated this 21st day of March, 2017.
Respectfully submitted,
/s/ Andrew D. Ringel
Andrew D. Ringel, Esq.
Gillian Dale, Esq.
Christina S. Gunn, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
daleg@hallevans.com
gunnc@hallevans.com
ATTORNEYS FOR DEFENDANT CITY OF
FORT COLLINS, COLORADO
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 21st day of March, 2017, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will send notification of such
filing to the following e-mail addresses:
David A. Lane, Esq.
dlane@kln-law.com
Andy McNulty, Esq.
amcnulty@kln-law.com
Jessica K. Peck, Esq.
jessica@jpdenver.com
/s/ Nicole Marion, Legal Assistant to
Andrew D. Ringel, Esq.
Hall & Evans, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
ATTORNEYS FOR DEFENDANT
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