OCEAN CITY — Undaunted by last week’s ruling by a federal judge in favor of the Town of Ocean City in the female topless suit, the plaintiffs’ attorney quickly asserted the outcome was just one last battle in the larger war.
Convinced Ocean City officials have a better understanding of the public sensibilities of its residents and guests than the plaintiffs in the case, a federal judge last week ruled against a preliminary injunction that would have allowed women to go topless in the same areas as men. Shortly after the judge’s ruling was issued, attorney Devon Jacob, who represents resident Chelsea Eline and four other plaintiffs in the civil suit filed last January, said his clients were not taken aback by the apparent setback.
“My clients are not discouraged,” he said. “A preliminary injunction is an extraordinary remedy that is rarely granted.”
U.S. District Court Judge James Bredar’s ruling on the requested preliminary injunction came after a hearing on Dec. 7 when Mayor Rick Meehan, Council Secretary Mary Knight and Chamber of Commerce Executive Director Melanie Pursel testified on behalf of the town. The town’s witnesses each testified they were better suited to judge the public’s sensibilities on the topless issue, at least in Ocean City. However, Jacob said there was ample time to change the judge’s opinion when the larger suit came to trial.
“The fact that the court denied the request on a very limited record is not at all surprising,” he said. “Once discovery is completed, plaintiffs will have no problem addressing the court’s concerns, so that the court will be able to issue a final decision that recognizes that men and women are equal under the law, and that a person’s civil rights do not yield to the sexist ideology of 150 people and their government representatives.”
The plaintiff’s lone witness during this month’s hearing was noted University of Indiana professor Dr. Debra Herbenick, who testified at length about the changing public sensibilities regarding female bare-chestedness in public.
However, in his ruling against the preliminary injunction, Bredar opined town officials were more successful in presenting evidence the sensibilities of town’s residents and were by and large more offended by the notion of female toplessness in the resort than the plaintiff’s expert witness.
“Public sensibilities, or moral sensibilities, are inherently somewhat impressionistic,” the opinion reads. “That does not mean they cannot be measured, but assessment of public sensibilities does not require scientific sampling. The question is more whether Ocean City’s witnesses, by virtue of their roles and positions, are equipped to ‘take the pulse’ of the community and its visitors and the court finds they are.”
By way of contrast, in his ruling denying the preliminary injunction, the judge opined Herbenick’s lengthy testimony about the public’s changing sensibilities to female toplessness was general in nature and not specific to Ocean City.
“The court does not find Dr. Herbenick’s opinion persuasive,” the opinion reads. “More important, it is not strictly relevant to the issue at hand. Instead of her testifying as to what Ocean City’s citizens’ public sensibilities are, she testified as to what she thought they should be.”
Bredar’s ruling asserts the town’s witnesses, at least in the context of the preliminary injunction request, achieved the goal of showing the emergency ordinance met the standard of governmental interest.
“Through this evidence, Ocean City has shown its ordinance is substantially related to an important governmental objective, the protection of public sensibilities,” the opinion reads. “Equal protection has not been denied here because any gender discrimination implicit in the subject ordinance is substantially related to an important governmental interest.”
In his ruling, the judge essentially opined public sensibilities on female toplessness could well be changing, but likely not in Ocean City at this time and at this place, based on the testimony of the town’s witnesses.
“Although the plaintiffs believe public sensibilities have changed to the point of ready acceptance by the public of bare-breasted females in public, other than for breastfeeding infants, they failed to counter the quite convincing evidence presented by Ocean City to the contrary,” the opinion reads. “That does not mean the public sensibilities recognized today will always be regarded as inappropriate, but for now, the court has seen no evidence that the public sensibilities are not what Ocean City’s representatives say they are in the ordinance.”
By contrast, Bredar opined the plaintiffs had not successfully argued their position on public sensibilities, at least at the preliminary injunction level.
“Consequently, the plaintiffs have not shown they are likely to succeed no the merits of this case and, therefore, they are not entitled to the extraordinary remedy of preliminary injunctive relief,” the judge’s order reads.
The judge’s ruling outlines some of the testimony from the Dec. 7 hearing. For example, Meehan testified Ocean City has for a long time nurtured its family image, which would likely be tarnished by the allowance of female toplessness on the beach and boards.
“He said that, for a number of years, Ocean City has positioned itself as a family vacation destination and has marketed itself accordingly,” the judge wrote of Meehan’s testimony. “Meehan said that tourism surveys of visitors to Ocean City overwhelmingly support its goal of being a family-friendly destination.”
The judge’s ruling retells Meehan’s testimony about the public backlash when the issue first arose in 2016.
“Meehan testified that people who contacted the city government were upset and concerned and said they would not return to Ocean City if female toplessness were allowed,” the judge’s order reads. “He said the issue was marked by the passion of those who were concerned about whether to keep their Ocean City properties or even visit Ocean City.”
As far as Knight’s testimony, the judge said the apparent volume of calls, emails and texts illustrated all of the responders had a negative opinion of allowing female toplessness in Ocean City. The same can be said of the testimony of Pursel, who said in court the Chamber of Commerce had received no less than 150 emails on the issue.
“No one expressed to her a desire for allowance of female toplessness in Ocean City’s public spaces,” the judge’s order reads. “She testified that the ordinance reflects the public sensibilities of people, both those in town and those who visit from out of town.”
The judge’s ruling last week cites a case from Virginia- United States v. Biocic- in which the courts ruled in favor of the defendant, in this case Accomack County. In that case, a plaintiff claimed constitutional injury because of a county code that prohibited indecency in public areas of national parks and wildlife refuges. The particular law at issue in that case prohibited public nudity, defined in part as the showing of the female breast with less than a fully opaque covering on any portion thereof below the top of the nipple,” which roughly follows the language in the town of Ocean City’s ordinance.
“The court identified the important governmental interest as protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens’ anatomies that traditionally in this society have been regarded as erogenous zones,” the judge’s order reads “These still include, whether justifiably or not in the eyes of all, the female, but not the male, breast.”
