Sonoku Tagami v. City of Chicago, et al
Filed opinion of the court by Judge Sykes. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge, dissenting, and Diane S. Sykes, Circuit Judge. [6882694-1]  [16-1441]
United States Court of Appeals
For the Seventh Circuit
CITY OF CHICAGO, et al.,
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 14 cv 9071 — Sharon Johnson Coleman, Judge.
ARGUED NOVEMBER 1, 2016 — DECIDED NOVEMBER 8, 2017
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Sonoku Tagami celebrated
“GoTopless Day 2014” by walking around the streets of
Chicago naked from the waist up, though wearing “opaque”
body paint on her bare breasts. She was cited for violating a
Chicago ordinance prohibiting public nudity. She responded
with this lawsuit alleging that the ordinance is unconstitutional. She contends that banning women from exposing
their breasts in public violates the First Amendment’s guarantee of freedom of speech and amounts to an impermissible
Amendment’s Equal Protection Clause. The district court
dismissed the suit and we
Tagami supports GoTopless, Inc., a nonprofit organization that advocates for a woman’s right to bare her breasts in
public. On August 24, 2014, she participated in the group’s
annual “GoTopless Day” by walking about the City of
Chicago unclothed from the waist up. Before doing so, she
applied “opaque” body paint to her bare breasts. That did
not suffice to avoid the predictable citation for public indecency. A police officer ticketed her for violating the city’s
public-nudity ordinance, which states that
[a]ny person who shall appear, bathe, sunbathe, walk or be in any public park, playground, beach or the waters adjacent thereto,
or any school facility and the area adjacent
thereto, or any municipal building and the areas adjacent thereto, or any public way within
the City of Chicago in such a manner that the
genitals, vulva, pubis, pubic hair, buttocks,
perineum, anus, anal region, or pubic hair region of any person, or any portion of the breast at
or below the upper edge of the areola thereof of any
female person, is exposed to public view or is not
covered by an opaque covering, shall be fined not
less than $100.00 nor more than $500.00 for
CHICAGO, ILL., CODE § 8-8-080 (emphasis added).
Tagami contested the citation before a hearing officer but
was found guilty of violating the public-nudity ordinance
and ordered to pay a $100 fine plus $50 in administrative
costs. Tagami then sued the City alleging that the ordinance
is facially unconstitutional. As relevant here, she claims that
the ordinance violates the First Amendment’s guarantee of
freedom of speech and discriminates on the basis of sex in
violation of the Fourteenth Amendment’s Equal Protection
The City moved to dismiss the original complaint for
failure to state a claim. See FED. R. CIV. P. 12(b)(6). The district judge dismissed the equal-protection claim but allowed
the First Amendment claim to proceed. Tagami then amended her complaint, reasserting both claims. The City again
moved to dismiss, and the judge again dismissed the equalprotection claim. As for the repleaded First Amendment
claim, the judge treated the City’s motion as a request for
reconsideration and reversed her previous ruling, dismissing that claim as well. Final judgment for the City followed
and Tagami appealed.
We review the judge’s dismissal order de novo, accepting
Tagami’s factual allegations as true and drawing reasonable
inferences in her favor. United Cent. Bank v. Davenport Estate
LLC, 815 F.3d 315, 318 (7th Cir. 2016).
Taking the First Amendment claim first, we begin with
an obvious point: Chicago’s public-nudity ordinance regulates conduct, not speech. Some forms of expressive conduct
get First Amendment protection, but this principle extends
only to conduct that is “inherently expressive.” Rumsfeld v.
Forum for Acad. & Inst’al Rights, Inc., 547 U.S. 47, 66 (2006)
(emphasis added). To fall within the scope of this doctrine,
the conduct in question must comprehensively communicate
its own message without additional speech. Id. Put slightly
differently, the conduct itself must convey a message that can
be readily “understood by those who view it.” Texas v.
Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v.
Washington, 418 U.S. 405, 411 (1974)). This limiting principle
is necessary lest “an apparently limitless variety of conduct
be labeled ‘speech’ whenever the person engaging in the
conduct intends thereby to express an idea.” United States v.
O’Brien, 391 U.S. 367, 376 (1968).
“Being in a state of nudity is not an inherently expressive
condition.” City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000)
(internal quotation marks omitted). Tagami nevertheless
contends that her public nudity, viewed in context, warrants
First Amendment protection as expressive conduct. She
alleged in her amended complaint that she bared her breasts
in public places around Chicago as part of GoTopless Day,
an event intended to “protest … laws that prevent women
from appearing bare-chested in public,” which the group
and its supporters consider archaic. Whatever her subjective
intent, Tagami’s public nudity did not itself communicate a
message of political protest. Indeed, her amended complaint
drives this point home by alleging that she appeared topless
in public “while expressing [her] views that women, like
men, should not be prohibited from appearing bare-chested
in public.” The presence of additional explanatory speech “is
strong evidence that the conduct … is not so inherently
expressive that it warrants [First Amendment] protection.”
Rumsfeld, 547 U.S. at 66.
Nor does the amended complaint offer any facts from
which it might reasonably be inferred that onlookers would
have readily understood that this public display of nudity
was actually a political protest against the City’s publicindecency ordinance. On this point the allegations here are
not remotely analogous to the circumstances at issue in
Johnson, the flag-burning case. There the Court held that
“[t]he expressive, overtly political nature of th[e] conduct
was both intentional and overwhelmingly apparent.”
Johnson, 491 U.S. at 406. It is not “overwhelmingly apparent”
that a woman’s act of baring her breasts in public expresses a
Even if we assume for the sake of argument that
Tagami’s nudity was communicative enough to warrant
some degree of First Amendment protection, the district
judge was right to dismiss this claim. “[W]hen ‘speech’ and
‘nonspeech’ elements are combined in the same course of
conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental
limitations on First Amendment freedoms.” O’Brien, 391 U.S.
at 376. Under the O’Brien test, a law survives First Amendment scrutiny if
(1) the regulation is within the constitutional
power of the government; (2) the regulation
furthers an important or substantial governmental interest; (3) the governmental interest is
unrelated to the suppression of free expression;
and (4) the restriction on alleged First
Amendment freedoms is no greater than essential to further the government’s interest.
Foxxxy Ladyz Adult World, Inc. v. Village of Dix, 779 F.3d 706,
712 (7th Cir. 2015) (describing O’Brien’s intermediate standard of scrutiny).
Tagami limits her argument to the second step of the
O’Brien framework, challenging only the City’s justification
for banning public nudity. To defend the ordinance against
this facial challenge, the City invokes its general interest in
preserving health, safety, and traditional moral norms. More
particularly, the City argues that the ordinance protects
unwilling members of the public—especially children—from
unwanted exposure to nudity.
Tagami insists that the City must produce evidence to
support its justification for this law, so dismissal at the
pleadings stage was improper. More specifically, she argues
that the City has the burden to show, with evidence, that the
ordinance is justified as a means to prevent the harmful
secondary effects of public displays of nudity.
Not so—at least not in this context.1 The Supreme Court
has upheld a similar public-nudity ban under the O’Brien
test based on history and tradition, without requiring an
evidentiary showing. See Barnes v. Glen Theatre, Inc., 501 U.S.
exotic-dancing clubs to defend enforcement of public-nudity laws in that
context. See, e.g., Foxxxy Ladyz Adult World, Inc. v. Village of Dix, 779 F.3d
706 (7th Cir. 2015); Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460
(7th Cir. 2009).
’ve held, requires some evidentiary
support. See Foxxxy Ladyz, 779 F.3d at 716. Chicago does not need a
secondaryto defend this ordinance. As we explain in
the text, Barnes
” line of cases is inapposite here.
560, 568–69 (1991). Here’s the key part of the Court’s reasoning:
[T]he statute’s purpose of protecting societal
order and morality is clear from its text and
history. Public indecency statutes of this sort
are of ancient origin and presently exist in at
least 47 States. Public indecency, including nudity, was a criminal offense at common law … .
Public nudity was considered an act malum in
se. Public indecency statutes … reflect moral
disapproval of people appearing in the nude
among strangers in public places.
This and other public indecency statutes were
designed to protect morals and public order.
The traditional police power of the States is defined as the authority to provide for the public
health, safety, and morals, and we have upheld
such a basis for legislation.
Id. (citation omitted). Put more succinctly, the interest at
stake here “is societal disapproval of nudity in public places
and among strangers,” id. at 572, so the prohibition “is not a
means to some greater end, but an end in itself,” id.
Chicago’s ordinance has a similar pedigree. It has existed
in one form or another for decades. Like other laws of this
type, its essential purposes—promoting traditional moral
norms and public order—are both self-evident and important enough to survive scrutiny under the O’Brien test. Id.
Moving now to the equal-protection claim, the City advances a threshold argument that its public-nudity ordinance does not actually classify by sex, so the Equal Protection Clause is not implicated at all. As the City sees it, the
ordinance treats men and women alike by equally prohibiting the public exposure of the male and female body parts
that are conventionally considered to be intimate, erogenous,
and private. The list of intimate body parts is longer for
women than men, but that’s wholly attributable to the basic
physiological differences between the sexes.
This strikes us as a justification for this classification rather than an argument that no sex-based classification is at
work here at all. On its face, the ordinance plainly does
impose different rules for women and men. It prohibits
public exposure of “the breast at or below the upper edge of
the areola thereof of any female person.” CHICAGO, ILL., CODE
§ 8-8-080 (emphasis added).
Still, a law that classifies on the basis of sex is compatible
with the Equal Protection Clause if the classification serves
important governmental objectives and the “discriminatory
means employed are substantially related to the achievement of those objectives.” United States v. Virginia, 518 U.S.
515, 533 (1996) (quotation marks omitted). This intermediate
level of judicial scrutiny recognizes that sex “has never been
rejected as an impermissible classification in all instances.”
Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981) (quotation
marks omitted). “Physical differences between men and
women … are enduring: [T]he two sexes are not fungible; a
community made up exclusively of one [sex] is different
from a community composed of both.” Virginia, 518 U.S. at
533 (alterations in original) (quotation marks omitted).
The intermediate-scrutiny test for sex-based legal classifications is not meaningfully different than the O’Brien test for
laws that burden expressive conduct. As we’ve just explained, Chicago’s public-nudity ordinance easily survives
review under O’Brien. Because the tests are materially
identical, it follows that the City’s ordinance withstands
ROVNER, Circuit Judge, dissenting. As in many First
Amendment cases, the speech at issue here is that which offends many, makes many others uncomfortable, and may
seem trivial and unimportant to most. The First Amendment
protects not just the speech which a majority of people find
persuasive and worthwhile, but to the contrary, its protections are most essential when the speech is that with which
most take offense. See, e.g., Rankin v. McPherson, 483 U.S.
378, 387 (1987). This is the caveat that must be emphasized
beyond all else in this case.
A court may not dismiss a case on the pleadings unless it
appears “beyond a reasonable doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.” Manning v. Miller, 355 F.3d 1028, 1031 (7th
Cir. 2004). We must always be mindful that when we dismiss a case on the pleadings, we deprive the parties of their
day in court to marshal evidence to make the most persuasive argument for their rights. And when presented with a
free speech claim, we must take care not to allow our own
personal assessment of the worth of the speech to dictate
whether the claim should be dismissed. In dismissing this
case on the pleadings, the majority has declared that there is
no set of facts under which Sonoko Tagami’s participation in
an annual “Go Topless Day” protest—an event sponsored by
a 501(c)(3) group advocating for gender equality in indecency ordinances—could be viewed as expressive conduct. Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir.
2007). This, the majority says, is because Tagami’s nudity is
conduct rather than expressive speech. To support this contention, the majority relies on the fact that Tagami accompanied the baring of her breasts with additional explanatory
speech—that is, she and her group explained their conduct,
passed out fliers and otherwise voiced the purpose of their
protest. According to the majority, the fact that Tagami appeared topless while also expressing her views about nudity
“is strong evidence that the conduct … is not so inherently
expressive that it warrants [First Amendment] protection.”
Majority at 4, citing Rumsfeld v. Forum for Acad. & Institutional
Rights, Inc., 547 U.S. 47, 66 (2006). Conduct is sufficiently expressive when the intent of it is to convey a particularized
message and the likelihood is great that those who view the
conduct will understand the message. Texas v. Johnson, 491
U.S. 397, 404 (1989). In Rumsfeld, the Court held that the act
of barring military recruiters from using campus facilities to
conduct law school interviews in protest of the military’s anti-gay policies was not inherently expressive because the
casual observer would not understand what message the
ban was conveying without an accompanying explanation
Id. And it is true in that fact scenario that the casual observer
could not possibly know why the recruiters had been barred,
or even that they had been barred, absent some explanation.
The majority nakedly declares that “Tagami’s public nudity did not itself communicate a message of political protest,” but rather required accompanying explanation. But the
fact that Tagami included some explanation with her conduct does not necessitate a finding that her message would
not have been understood otherwise. Accompanying explanations do not turn expressive conduct into non-expressive
conduct. Otherwise wearing a black armband would constitute expressive conduct, but wearing an armband and shouting “No more war!” would not. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). Nor can one evaluate the expressive content of public nudity divorced from the
context in which it occurs. It is akin to taking a picture of a
recent women’s march protest and enlarging it again and
again to isolate a single marcher wearing a pink hat and concluding from the picture of a single hat-wearing marcher
alone that the conduct is not expressive because the wearing
of a hat “d[oes] not itself communicate a message of political
protest.” See Majority at 4.
There could not be a clearer example of conduct as
speech than the one here. Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to
earn money, streaking across a football field to appear on
television, or even nursing a baby (conduct that is exempted
from the reach of the ordinance ). Her conduct had but one
purpose—to engage in a political protest challenging the
City’s ordinance on indecent exposure. Tagami engaged in
the paradigm of First Amendment speech—a public protest
on public land in which the participants sought to change a
law that, on its face, treats women differently than men. It is
difficult to imagine conduct more directly linked to the message than that in which Tagami engaged. The ordinance
prohibits bare (female) breasts; Tagami bared her breasts in
protest. (To be more precise, Tagami apparently intended to
comply with, but push the limits of the ordinance by painting her breasts with opaque paint.) The baring of breasts
uniquely conveyed the intensity of the expression of protest
and also the degree of commitment of the protestor. We are
a society that expresses itself with displays on our bodies
ranging from messaged t-shirts and hats, provocative clothing, tattoos, arm bands, and lapel pins. Perhaps this is why
so many of our seminal free expression cases involve protected expressive conduct of clothing or the absence of it.
See, e.g. Tinker, 393 U.S. 503 (arm bands to protest the war);
Cohen v. California, 403 U.S. 15, 16 (1971) (a jacket bearing the
words “F#*k the Draft”); Barnes v. Glen Theatre, Inc., 501 U.S.
560, 566, (1991) (nude dancing is expressive conduct); Nuxoll
ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668,
676 (7th Cir. 2008) (student protesting gay rights day with
shirt bearing the slogan “Be Happy, Not Gay”). See also,
Brandt v. Bd. of Educ. of City of Chicago, 480 F.3d 460, 465 (7th
Cir. 2007) (“For that matter, parading in public wearing no
clothing at all can, depending on the circumstances, convey
a political message.”). Public nudity may not always be “inherently expressive,” See City of Erie, 529 U.S. at 299, (and I
can think of many situations in which it would not be), but
to declare, as a matter of law, that it can never be expressive
is the quintessence of throwing out the free-expression baby
with the non-expressive-conduct bath water.
Although Tagami’s conduct clearly was expressive, the
City might still have a legitimate reason for prohibiting it.
The majority concludes that the purpose of “promoting traditional moral norms and public order—are both selfevident and important enough to survive scrutiny under the
O’Brien test.” Majority at 7. It is true that in our society female breasts have been sexualized as objects of desire while
the breasts of men have not. There is no biological basis for
this distinction. The primary functional difference between
the female breast and the male breast is not a sexual one, but
rather, just the opposite—the fact that the former has the potential to provide milk to sustain a baby, while the latter
does not. The City’s claim therefore boils down to a desire to
perpetuate a stereotype that female breasts are primarily the
objects of desire, and male breasts are not. As a district court
reasoned in a similar case, we should not “accept the notion
… that we should continue a stereotypical distinction ‘rightly or wrongly,’ or that something passes constitutional mus-
ter because it has historically been a part of ‘our culture.’”
Free the Nipple-Fort Collins v. City of Fort Collins, Colorado, 237
F. Supp. 3d 1126, 1133 (D. Colo. 2017). Had we done so we
would not now have women lawyers, women jurors, women
estate administrators or women military cadets. Id. I cannot
say for certain what the ultimate outcome in this case would
be after a full airing of the evidence, but to declare that
Tagami’s conduct cannot be a protected expression of free
speech under any circumstances is premature.
Whether Tagami’s conduct was sufficiently expressive
and whether the City will be able to demonstrate a sufficient
justification under O’Brien for banning the showing of the
female breast below the upper edge of the areola are not
matters that can be resolved on a motion to dismiss. And it is
that aspect and only that aspect—the prematurity of this decision—from which I dissent.
Nor should Tagami’s equal protection claim have been
dismissed at the pleading stage. As my colleagues rightly
acknowledge, Chicago’s ordinance proscribing “indecent
exposure or dress” on its face treats men and women differently, making it an offense only for women to bare their
breasts in public. That differential treatment must be
grounded in an “exceedingly persuasive justification.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1690 (2017) (quoting
United States v. Virginia, 518 U.S. 515, 524 (1996)). Of course
male and female anatomies are different. But, as we noted,
the principal respect in which the female breast is different is
the role it plays in feeding infants, and yet that is the one
purpose for which Chicago permits the female breast to be
exposed in public. Apart from breastfeeding, it is societal
perception rather than form and function that categorically
distinguishes the female breast from the male: in our culture,
a woman’s breast has long been viewed as uniquely sexual
and titillating. See Free the Nipple-Fort Collins, 237 F. Supp. 3d
at 1132–33. Any invocation of tradition and moral values in
support of a law that facially discriminates among classes of
people calls for a healthy dose of skepticism on our part, as
historical norms are as likely to reflect longstanding biases as
they are reasonable distinctions. See Morales-Santana, 137
S. Ct. at 1692–93 (noting that the Court views with suspicion
laws that rely on stereotypes concerning men’s and women’s
respective social roles); Obergefell v. Hodges, 135 S. Ct. 2584,
2604–05 (2015) (noting essential role Equal Protection Clause
plays in identifying inequalities previously “unnoticed and
unchallenged”); Lawrence v. Texas, 539 U.S. 558, 571 (2003)
(“Our obligation is to define the liberty of all, not to mandate
our own moral code.”) (quoting Planned Parenthood of SE
Penn. v. Casey, 505 U.S. 833, 850 (1992)); People v. Santorelli,
600 N.E.2d 232, 236 (N.Y. 1992) (Titone, J., concurring)
(“where ‘public sensibilities’ constitute the justification for a
gender-based classification, the fundamental question is
whether the particular ‘sensibility’ to be protected is, in fact,
a reflection of archaic prejudice or a manifestation of a legitimate government objective”). Whether out of reverence or
fear of female breasts, Chicago’s ordinance calls attention to
and sexualizes the female form, see Free the Nipple-Fort Collins, 237 F. Supp. 3d at 1133, and imposes a burden of public
modesty on women alone, with ramifications that likely extend beyond the public way. Women, like men, take their
bodies with them everywhere, and when the law imposes a
different code of dress on women, when it requires them to
cover up in a way that men need not, it is quite possible that
women will be treated differently—in the workplace, in the
public square, on the subway—precisely because they are
required to dress differently. Cf. Price Waterhouse v. Hopkins,
490 U.S. 228, 251 (1989) (workplace evaluations based on stereotypes of how women should dress, appear, and comport
themselves can constitute sex discrimination violating Title
VII of the Civil Rights Act of 1964)); Carroll v. Talman Fed.
Sav. & Loan Ass’n of Chicago, 604 F.2d 1028, 1032–33 (7th Cir.
1979) (workplace dress code requiring women but not men
to wear uniforms described as demeaning to women). In any
case, it strikes me as open to question whether there exists a
broad consensus in support of the notion that a woman appearing bare-chested in public constitutes indecent exposure: only three states (Indiana, Tennessee, and Utah) have
statutes clearly treating the exposure of the female breast as
indecency, and section 213.5 of the Model Penal Code is limited to public exposure of the genitals (male or female).
Do I relish the prospect of seeing bare-chested women in
public? As a private citizen, I surely do not. (I would give
the same answer with respect to bare-chested men.) But I
speak here strictly as a judge, with the responsibility to accord Tagami her constitutional rights.
The question before us is not whether Tagami should
prevail but whether she might prevail after a full development of the record. Tagami has presented us with potentially
viable First Amendment and sex discrimination claims. Like
any other litigant with a viable case, she should be permitted
to develop the record in support of her claims, and the City
in turn should be required to present evidence to justify its
I respectfully dissent.
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