In 2015, two members of the nonprofit organization Free the Nipple-Springfield Residents Promoting Equality went topless – although their nipples were covered – in Springfield’s town square to protest the city’s indecent exposure ordinance.
After the protest, the Springfield City Council enacted an even stricter ordinance, which Free the Nipple and the two members challenged in court.
Represented by the ACLU of Missouri, they argued that Springfield could have enacted a neutral law prohibiting both men and women from showing their nipples. The ordinance, they said, was based on impermissible stereotypes and violated the Constitution’s Equal Protection Clause by treating men and women differently.
U.S. District Judge Beth Phillips disagreed. In 2017, she ruled the city had a legitimate interest in prohibiting nudity and allowed the ordinance to stand.
On Monday, a three-judge panel of the Eighth U.S. Circuit Court of Appeals upheld Phillips. The panel found that a 2001 case decided by the Eighth Circuit and involving a nearly identical ordinance in Lincoln, Nebraska, controlled the outcome.
In that case, the court ruled that Lincoln’s interests “in preventing the secondary adverse effects of public nudity and protecting the order, morality, health, safety, and well-being of the populace are important,” and the ordinance was “substantially related to those objectives.”
The Lincoln ordinance prohibited “the showing of the female breast with less than a fully opaque covering on any part of the areola or nipple.”
Although Kansas City has ordinances governing nudity in massage shops and adult cabarets, the city has no similar law to Springfield’s prohibiting exposure of the female breast in public places. Missouri’s sexual misconduct law mentions only “genitalia,” not breasts, and a state law passed in 1999 allows mothers, “with discretion,” to breastfeed their children in public.
The Eighth Circuit’s decision mirrors the findings of most courts that have considered the issue, although the Tenth Circuit Court of Appeals earlier this year found otherwise, which could set the stage for an eventual showdown in the U.S. Supreme Court.
The Tenth Circuit ruled in response to a similar challenge brought by Free the Nipple to a Fort Collins, Colorado, ordinance prohibiting women from displaying their areolas. In a decision by a Judge Gregory Phillips (no relation to Judge Beth Phillips), it found that “laws grounded in stereotypes about the way women are serve no important governmental interest.”
The Fort Collins law carried up to 180 days in jail for people who “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.”
Just a week before the 10th Circuit handed down its decision, the New Hampshire Supreme Court upheld the conviction of three women for going topless at a beach in Laconia, New Hampshire.
“We have found that the ordinance does not violate the defendants’ constitutional rights to equal protection or freedom of speech under the state and federal constitutions,” the court wrote.
Laconia’s indecent exposure law banned the “showing of female breasts with less than a fully opaque covering of any part of the nipple.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.
