Sonoku TAGAMI, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees, 875 F.3d 375

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 sex-based classification in violation of the Fourteenth Amendment’s Equal Protection Clause.

The district court dismissed the suit and we affirm. I. Background 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 each offense.

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 Clause. 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 equal-protection 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. II.

Discussion 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, 126 S.Ct. 1297, 164 L.Ed.2d 156 (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, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)).

This limiting principle is' necessary iest “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, 88 S.Ct. 1673, 20 L.Ed.2d 672 (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, 120 S.Ct. 1382, 146 L.Ed.2d 265 (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, 126 S.Ct. 1297.

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 public-indecency 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, 109 S.Ct. 2533.

It is not “overwhelmingly apparent” that a woman’s act of baring her breasts in public expresses a political message. 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 non-speech element can justify incidental limitations on First Amendment freedoms.” O’Brien, 391 U.S. at 376, 88 S.Ct. 1673.

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. 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. 560, 568-69, 111 S.Ct. 2456, 115 L.Ed.2d 504 (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, 111 S.Ct. 2456, 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. at 569, 111 S.Ct. 2456.

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, 116 S.Ct. 2264, 135 L.Ed.2d 735 (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, 101 S.Ct. 2646, 69 L.Ed.2d 478 (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, 116 S.Ct. 2264 (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 equal-protection challenge. Affirmed. . Local governments sometimes point to the harmful secondary effects of 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). That justification, we've held, requires some evidentiary support.

See Foxxxy Ladyz, 779 F.3d at 716. Chicago does not need a secondary-effects justification to defend this ordinance. As we explain in the text, Barnes suffices to defeat this facial challenge. The "secondary effects" line of cases ‘is inappo-site here.