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Title: Free the Nipple

Author: Anthony L. McMullen, J.D., Associate Professor of Business Law, University of Central Arkansas

Subject: Constitutional Law (Equal Protection)

Activity Overview: This activity is designed to challenge students to apply one of the levels of scrutiny in an Equal Protection Challenge. “Free the Nipple” is a national movement that is challenging laws that make it illegal for women from being topless in public. Many of these laws only apply to women and not men, creating a possible Equal Protection issue. The organization has been successful in the U.S. Court of Appeals for the Tenth Circuit, but unsuccessful in the U.S. Court of Appeals for the Eighth Circuit.

Ingredients: Textbook materials on Equal Protection; Excerpts from Free the Nipple—Ft. Collins v. City of Ft. Collins, Colo., 916 F.3d 792, 795 (10th Cir. 2019) (affirming a preliminary injunction prohibiting enforcement of a public-nudity ordinance); Free the Nipple—Springfield Residents Promoting Equality v. City of Springfield, Mo., 923 F.3d 508 (8th Cir. 2019) (affirming a grant of summary judgment in favor of the City of Springfield, finding that the ordinance did not violate the Equal Protection Clause).

Running the Activity: Locate the applicable statute or ordinance in your jurisdiction (or use the ordinance challenged in Free the Nipple—Ft. Collins if you prefer). Break students into groups and discuss. Depending on the amount of time allotted to the activity, you might have students read excerpts from both cases. Have students consider the following questions:

  • What constitutional level of scrutiny applies here?
  • Is the government accomplishing an important government objective by prohibiting topless women in public? Is the law in question substantially related to that objective?
  • What are the implications if the law is deemed unconstitutional?
  • Which court makes the more convincing argument regarding the constitutionality of laws that prohibit female toplessness?
  • If the law is constitutional, should women still have a right to go topless in public without fear of criminal sanction?

Substitutions: While the author believes that this exercise is best used in a face-to-face class, it is also suitable as a discussion post assignment in an asynchronous online class.

Suggestions: Most texts that cover Equal Protection cover the different levels of scrutiny, but students find it challenging distinguishing between the three levels. Use of the levels of scrutiny has been fairly criticized, but for now, courts continue to apply them. It might be helpful to distinguish what might happen if the court were to apply either the strict scrutiny or rational basis tests.

While there are many current examples that could be used to discuss Equal Protectoin, the “Free the Nipple” cases should easily lead to further conversations related to free expression, sexual expression, and sexual harassment.

Review or follow-up: Congress sent the Equal Rights Amendment to the states in 1972. The text of the Amendment states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Initially, thirty-eight states had to ratify the Amendment within seven years for it to become part of the Constitution. Only thirty-five states ratified the Amendment by the deadline. Still, efforts continued to ratify the Amendment. In recent years, Illinois, Nevada, and Virginia all ratified the Amendment, and in August 2020, those states filed suit to have it added to the Constitution. So far, the lawsuit has been unsuccessful. See Virginia v. Ferriero, ___ F. Supp. 3d ____, 2021 WL 848706 (D.D.C. Mar. 5, 2021).

Students might be asked about the practical effects of the Equal Rights Amendment. This discussion could be coupled with a discussion of Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (holding that discrimination on the basis of sexual orientation or gender identity fall within Title VII’s prohibition against discrimination the basis of sex). If the Equal Rights Amendment were adopted, would that include LGBT protections as well?

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