On the bright side, the Tenth Circuit ruled the other way in February, concluding that a female-only toplessness ban is likely unconstitutional. Interestingly, one of the reasons the defendant offered for the ban was the promotion of traffic safety. Obviously, the interns who drafted this legislation must have been big fans of "Seinfeld" and remembered when Jerry and Kramer got into a car accident because they were distracted by Sue Ellen Mischke walking down the street wearing just a bra.
The good news, of course, is that there's now a circuit split, the perfect set-up for the Supreme Court to have to take up the issue. Justice Thomas is well-known for not asking questions during oral arguments, but I betcha, he might make an exception here. Now's the time to petition the Court to allow TV cameras, so that Hooters can offer viewing parties. It almost makes me hope that Donald Trump will be reelected, so he can be use the bully pulpit in defense of nipples.
If restrictions on nipples weren't tragic enough, the draconian prohibitions imposed by public decency laws are not limited to women. Men can also be victims -- and not just those who want to free the nipples. I haven't done a broad survey of public decency laws, but the Springfield, Missouri law struck me as having an unusual prohibition -- "the showing of the covered male genitals in a discernibly turgid state." That's right, no public boners. Women at least have a choice about whether to cover up. But what are German soccer players to do? Hopefully, the brave will heed the call, and a new movement will be born -- Free the Boners!
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
