Ruling: Woman’s topless protest not protected by First Amendment

Friday, November 2, 2007

Females do not have a constitutional right to display their breasts in public, an Ohio appeals court ruled recently in upholding a disorderly conduct conviction for such a display in a public park in Bowling Green.

Lorien D. Bourne and some of her friends gathered in a public park in September 2006 to form a “Solidarity Potluck” to raise awareness of sexism and double standards. Calling themselves “the Titty Committee,” several of the women, including Bourne, removed their shirts. Receiving complaints of topless women in the park, an officer issued citations for disorderly conduct to several women.

A Bowling Green municipal court found Bourne guilty of the charges and imposed a $25 fine plus court costs. She appealed to the state appeals court, which affirmed her conviction in City of Bowling Green v. Bourne.

In her appeal, Bourne argued that the conviction violated her constitutional rights of equal protection and freedom of expression. She claimed the city violated her 14th Amendment equal-protection rights because men can go shirtless in public, often without incident, while women face criminal punishment for the same activity. She also asserted a free-expression defense, contending that she was expressing her opposition to sexism.

The appeals court rejected both arguments. “This court does agree that there are occasions where shirtless males are offensive,” the court wrote in rejecting her equal-protection claim. “However, we cannot ignore the firmly rooted societal differences between male and female anatomy.”

Turning to her free-expression argument, the Ohio appeals court determined that Bourne’s act of displaying her breasts contained elements of both speech and conduct. It applied the four-part test from the U.S. Supreme Court decision U.S. v. O’Brien (1968). The O’Brien test — articulated in a case involving the burning of draft cards to protest the Vietnam War — provides that a law or regulation affecting speech and conduct is constitutional if:

  1. The government has the power to issue the regulation.

  2. The government has a substantial interest in its regulation.

  3. The government’s substantial interest is not related to the suppression of free expression.

  4. The restriction on First Amendment freedoms is no greater than necessary to further the government’s interest.

The appeals court found that the city had the power to pass the disorderly conduct law and the city had a substantial interest in “maintaining peace and order and protecting social norms.” The court further determined that the city’s interest in maintaining order was unrelated to suppressing free expression and that the officer’s response was not excessive.

The court noted that the officer simply asked Bourne and the other women to put their shirts back on and did not ask them to “disband the group or bar their message.”

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