OCEAN CITY — While a challenge to Ocean City’s ordinance prohibiting female toplessness plods on in federal court, one Colorado community last week threw in the towel in its similar battle.
In June 2017, amid a backlash from concerned residents and visitors, the Ocean City Mayor and Council passed an emergency ordinance prohibiting women from going topless in the same public areas, such as the beach and Boardwalk, for example, where men are allowed to go shirtless. In January 2018, four named plaintiffs filed suit in U.S. District Court challenging the town’s female toplessness ordinance, asserting it violated the free speech and equal protection sections of the U.S. Constitution.
Last December, a U.S. District Court judge denied the plaintiffs’ request for a preliminary injunction, which, if approved, would have enjoined the town from enforcing its ordinance on female toplessness until the overall case was tried on the merits. The denial of the preliminary injunction was a minor victory for the town in what continues to be a large battle as the case continues to plod along in federal court.
Meanwhile, a similar scenario has played out in Fort Collins, Colo. where officials in that city passed a female toplessness ordinance with language comparable to that in Ocean City’s ordinance passed in 2017. However, the Fort Collins case ostensibly ended last week when the council in that community passed an ordinance reversing its prohibition on females going topless in the same public areas where men are allowed to go shirtless.
The Fort Collins City Council’s vote essentially signals a “if you can’t beat them, join them,” action. It could have a bearing on Ocean City’s pending defense of its own ordinance in federal court, but the Colorado case certainly isn’t precedent-setting. Similar scenarios have played out or are playing out in communities all over the country with varied results. However, the victory for female toplessness in Fort Collins bears scrutiny as the Ocean City case moves forward.
By way of background, in 2016, Fort Collins passed an ordinance that imposed no restrictions on male toplessness in public places, but prohibited women from baring their breasts below the areola in those same defined public places. The Fort Collins ordinance was almost immediately challenged by two named plaintiffs and the larger “Free the Nipple” advocacy group.
The Fort Collins ordinance was challenged on the grounds it violated the free speech clause in the First Amendment and the equal protection clause under the 14th Amendment. The plaintiffs asked a federal district court judge for a preliminary injunction to enjoin Fort Collins from enforcing its ordinance until the larger case was resolved.
In February 2017, the U.S. District Court judge granted the preliminary injunction. In turn, Fort Collins filed an appeal to no avail. In July, the federal court, after a lengthy hearing on the merits, made the preliminary injunction permanent. That left Fort Collins with the decision to pursue the case further, but its only legal remedy left was a potential hearing in front of the U.S. Supreme Court.
However, with the weight of the U.S. District Court’s ruling against it, along with the prospect of spending considerable taxpayer money pursuing a challenge in the U.S. Supreme Court that may or may not even happen, the Fort Collins City Council last week passed an ordinance reversing its female toplessness prohibition.
“In order to prevent confusion for residents, visitors and law enforcement about what conduct is or is not prohibited within the city, the City Council finds that it is in the best interest of the city to amend the nudity ordinance to eliminate the prohibition on exposure of the female breast,” the Fort Collins ordinance passed last week reads.
The Fort Collins case may or may not have a bearing on Ocean City’s pending case in federal court, but it warrants keeping an eye on. While the Fort Collins case is being claimed as a victory for female toplessness, the movement has taken its lumps, so to speak, in similar cases around the country. Just last spring, the New Hampshire Supreme Court upheld a similar ordinance in the beach town of Laconia, ruling that community’s female toplessness ordinance was constitutional.
In terms of Ocean City’s case, resort officials during a hearing on the preliminary injunction last December successfully argued the city’s leaders had a better understanding of the public sensibilities of its residents and visitors than the plaintiffs in the case. The federal judge presiding over the preliminary injunction hearing agreed.
“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,” the judge’s opinion read. “The plaintiffs did not muster any evidence to show that Ocean City’s citizens shared their view that women should be able to be bare-chested in public areas as men are.”
However, the denial of the preliminary injunction was just a minor victory for the town of Ocean City in what continues to be a larger battle. Shortly after the judge’s ruling was issued, attorney Devon Jacob who represents the four named plaintiffs in the Ocean City suit, said his clients were not dissuaded from the apparent setback.
“My clients are not discouraged,” he said. “A preliminary injunction is an extraordinary remedy that is rarely granted.”
Meanwhile, there has been little movement in the federal suit challenging Ocean City’s topless ordinance although a few deadlines in the case passed this week. For example, the discovery and status report deadline passed last Friday and the deadline for dispositive pre-trial motions is set for next month. No trial date has been set in the case, however.
