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Tagami v. City of Chicago

United States Court of Appeals, Seventh Circuit

November 8, 2017

Sonoku Tagami, Plaintiff-Appellant,
v.
City of Chicago, et al., Defendants-Appellees.

          Argued November 1, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 cv 9071 - Sharon Johnson Coleman, Judge.

          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 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, III., 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 (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 ...


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