Setember 11, 2017

 

Response Brief FILED!

David Lane and Andrew McNulty have filed a response brief to the appeal filed by the City of Fort Collins. The following points we expounded upon in great depth in the 69 page document.

  • Section 17-142 perpetuates the sex stereotype that the exposure of women’s breasts is inherently sexual
  • Section 17-142 perpetuates the sex stereotype that women should dress with their breasts covered below the areola while men should have the freedom to dress otherwise
  • Section 17-142 has no effect on the general public order in Fort Collins
  • Section 17-142 has no effect on traffic safety in Fort Collins
  • Morality, which is couched by Defendant-Appellant as an interest in “decency” and “family-friendliness,”
    cannot justify sex discrimination
  • Section 17-142 does not promote respect for women or prevent assaults
  • Criminalizing Plaintiff-Appellees’ sartorial choices has no impact on the quiet enjoyment of private property
  • There is no evidence in the record demonstrating that Section 17-142 has an impact on businesses in Fort Collins
  • Fort Collins has no legitimate interest in regulating the personal dress of its female citizens at large

February 22nd, 2017

Preliminary Injunction GRANTED!

Judge Brooke R. Jackson has granted a preliminary injunction prohibiting the enforcement of Fort Collins' sexist public nudity ordinance. A legal victory after three years of fighting. Jackson has stated that the ordinance is "likely" to be found unconstitutional.

  • On defendant’s first argument, I find that the evidence Fort Collins has presented about these governmental interests amounts to little more than speculation.
  • Nor has Fort Collins provided any meaningful evidence that the mere sight of a female breast endangers children.
  • 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.
  • 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.
  • 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.”
  • 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.

Read the coverage from Denver's FOX 31 here. 
You can find the judge's order in its entirety here.

Plaintiff Samantha Six, on the day of the injunction, exercising her constitutional right in front of the Fort Collins City Hall sign. 2/22/17

Plaintiff Samantha Six, on the day of the injunction, exercising her constitutional right in front of the Fort Collins City Hall sign. 2/22/17

October 20th, 2016

Judge Jackson Granted Motion To Dismiss In Part and Denied In Part

  • First Amendment Claim Dismissal Granted 
    "...I find that plaintiffs’ conduct does not warrant First Amendment protection because they have not adequately stated that there is a great likelihood that their nudity’s message about the sexualized nature of certain laws is likely to be understood by those who view them topless in public."
  • 14th Amendment Claim Dismissal Denied
    "...defendant invokes the Court’s old equal rights jurisprudence that says that the Constitution broadly permits government to discriminate based on sex when it does so pursuant to a “real” difference between the sexes. ...However, defendant never seriously explains why plaintiff’s argument that Section 17-142 and its justifications are unconstitutionally grounded in stereotypes and prejudices does not state a viable equal protection claim."
  • Colorado Equal Rights Amendment Claim Dismissal Denied
    "Though plaintiffs appear to be right, see Colo. Civil Rights Com, 759 P.2d at 1363

    (stating that Colorado’s Equal Rights Amendment “requires that legislative classifications based exclusively on sexual status receive the closest judicial scrutiny”), the Court does not feel the need to wade into this issue because, as discussed supra, plaintiffs have at the very least adequately stated a claim under the Fourteenth Amendment Equal Protection Clause’s intermediate scrutiny standard. ...Accordingly, defendant’s motion to dismiss plaintiffs’ claim under the Colorado Constitution’s Equal Rights Amendment is denied.

August 4th, 2016

City of Fort Collins filed Motion to Dismiss the complaint.

  • At the October 20, 2015, City Council meeting, Fort Collins advanced three
    reasons for the ordinance:
    (1) That women who appear in public with their breasts and nipples exposed
    violate the values of the Fort Collins community, including its sense of
    decency and family,
    (2) That women with exposed breasts impede the right of others to enjoy
    public spaces, and
    (3) That women with exposed breasts constitute pornography, which children
    cannot legally view.
  • Allowing women to appear topless in public would denigrate a woman’s respect and value and was counterproductive to the goal of protecting women from assaults.
  • Because there does not appear to be any likelihood the particularized message Plaintiffs purport to convey by going topless would be understood by those who view it, their conduct does not constitute protected speech and there is no need to evaluate whether regulation of the conduct is permissible. 
  • The female breast is presented as an object for manipulation, abuse and male domination.

May 31st, 2016

Complaint was filed against the city of Fort Collins on behalf of Free the Nipple FoCo.

  • In Plaintiffs’ view, the Fort Collins ordinance was discriminatory against girls, women, and LGBTQIA persons by making it a crime to show their breasts and/or nipples in any place where they might be viewed by others while allowing boys and men to show their breasts and/or nipples at any time or place without fear of arrest or prosecution.
  • In email exchanges with a citizen of Fort Collins, one city councilor, Ray Martinez, stated that he would vote to maintain Defendant’s ban on exposure of the female nipple and/or breast because allowing women to appear topless at public places would “denigrate[] a woman’s respect and value.” 
  • The reasons advanced by the city council demonstrate that the ordinance’s purpose is to perpetuate stereotypes about girls and women and is a response to the council’s apparent view that the breasts of women are primarily objects of sexual desire.
  • Section 17-142, in its current form, is one of the most restrictive public nudity ordinances in the nation. If a woman were to wear a plunging neckline dress, thereby exposing either side of her breast; a microkini, thereby exposing the bottom portion of her breast; or pasties, thereby covering only her nipple and exposing the rest of her breast, that woman would be in violation of Section 17-142 and subject to criminal punishment
  • Section 17-142’s different treatment of women and girls, on the one hand, and men and boys, on the other hand, is intended to perpetuate traditional gender roles