To protect public health, safety, and morals, the government has an important interest in preventing women from going topless, a federal appeals court has ruled. And the importance of keeping lady breasts out of public view overrules any First Amendment or equal protection issues that such a policy raises.
But at least one dissenting judge felt differently, describing our topless protagonist as having "engaged in the paradigm of First Amendment speech—a public protest on public land in which the participants sought to change a law that, on its face, treats women differently than men."
Going topless might not be inherently expressive, "but to declare, as a matter of law, that it can never be expressive is the quintessence of throwing out the free-expression baby with the non-expressive-conduct bath water," Judge Ilana Rovner wrote.
And while Rovner notes that as a citizen, she doesn't "relish the prospect of seeing bare-chested women in public," she thinks the plaintiff here does present "potentially viable First Amendment and sex discrimination claims."
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