Free the Nipple—Springfield Residents Promoting Equality v. City of Springfield

153 F. Supp. 3d 1037, 2015 U.S. Dist. LEXIS 174025, 2015 WL 9595628
CourtDistrict Court, W.D. Missouri
DecidedDecember 28, 2015
DocketCase No. 15-3467-CV-S-BP
StatusPublished
Cited by3 cases

This text of 153 F. Supp. 3d 1037 (Free the Nipple—Springfield Residents Promoting Equality v. City of Springfield) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Free the Nipple—Springfield Residents Promoting Equality v. City of Springfield, 153 F. Supp. 3d 1037, 2015 U.S. Dist. LEXIS 174025, 2015 WL 9595628 (W.D. Mo. 2015).

Opinion

ORDER AND OPINION (1) DENYING DEFENDANT’S MOTION TO DISMISS FOR LACK OF STANDING OR FOR FAILURE TO STATE A CLAIM, (2) DISMISSING COUNT IV WITHOUT PREJUDICE, AND (3) ESTABLISHING BRIEFING SCHEDULE ON PLAINTIFFS’MOTION FOR PRELIMINARY INJUNCTION

BETH PHILLIPS, JUDGE, UNITED STATES DISTRICT COURT

Plaintiffs present constitutional and statutory challenges to a recently-enacted or[1040]*1040dinance regarding indecent exposure. Defendant seeks dismissal, contending (1) Plaintiffs lack standing and (2) even if Plaintiffs have standing they have failed to state a claim for which relief can be granted. The motion, (Doc. 14), is denied. However, Count IV is dismissed because the Court exercises its discretion to decline supplemental jurisdiction. Finally, Defendant is directed to respond to Plaintiffs’ Motion for Preliminary Injunction.

I. BACKGROUND

Plaintiff Free the Nipple — Springfield Residents Promoting Equality (“FTN”) is “an unincorporated association of both men and women who believe in equality” who “have focused upon the double standards, hypocrisies, and sexualization of the female upper body that underlie government efforts to censor female breasts.” (Doc. 2, ¶ 1; see also Doc. 2, ¶ 6.) Individual Plaintiffs Jessica Lawson and Amber Hutchison are residents of the City of Springfield, Missouri, and are members of FTN.

As of August 23, 2015 the City of Springfield (“Defendant”) criminalized by ordinance “the showing of the female breast with less than a fully opaque covering of any part of the nipple — ” (Id. ¶ 2; see also id. ¶ 15.) On two occasions in August 2015 Lawson, Hutchison, “and others protested [the] ordinance ... by marching at Park Central Square in downtown Springfield without shirts, but with their nipples covered, in compliance with the ordinance.” (Id. ¶ 3; see also id. ¶¶ 19-20.) In response, the City Council replaced the ordinance with one that outlaws any “exposure of ... the female breast below a point immediately above the top of the areola, for the purpose of sexual arousal or gratification or which is likely to cause affront or alarm.... ” Springfield Ordinance § 78-222(b)(1) (“the New Ordinance”). There are two exceptions. One exception is for “any exposure of the female breast necessarily incident to breast feeding an infant,” and the other is for “performances of adult entertainment in compliance with section 10-7.” Id. §§ 78-222(b)(1), (c).

Plaintiffs present four claims to challenge the New Ordinance. Count I alleges the New Ordinance violates the First Amendment because it curtails Plaintiffs’ free speech rights. This claim is premised on the allegation that Plaintiffs’ “conduct of exposing the female breast below a point immediately above the top of the areola is intended to convey a particularized message that is likely to be understood by those who view it.” (Doc. 2, ¶ 44). Count II alleges the New Ordinance violates the Due Process Clause because it does not adequately explain “when exposing the female breast below a point immediately above the top of the areola is prohibited” so it “authorizes or encourages arbitrary and discriminatory enforcement,” and because breast-feeding mothers will have no ability to know how much exposure is “néeessarily incident to breast-feeding an infant.” (Id. ¶¶ 50-51.) Count III alleges the New Ordinance violates the Equal Protection Clause because it “treats women and girls differently than men and boys” and “is intended to perpetuate traditional gender roles.” (Id. ¶ 54-55.) Finally, Count IV alleges that the New Ordinance conflicts with § 191.918 of the Revised Missouri Statutes, which protects a mother’s right to breast-feed her child and declares that municipalities cannot enact ordinances “prohibiting a mother from breast-feeding a child or expressing breast milk in a public or private location where the mother and child are otherwise authorized to be.” Plaintiffs argue that the New Ordinance conflicts with (and is preempted by) [1041]*1041§ 191.918 because it allows for only “infants” to be breast-fed in public.

In support of their claims generally and their Motion for Preliminary Injunction specifically, Plaintiffs allege they plan to participate in additional protests like the ones held in August 2015 that caused Defendant to change its ordinance. They believe that displaying their “mostly nude upper bod[ies]” will “educate others about subtle, state-sanctioned gender inequality.” (Doc. 9-1, ¶ 10; Doc. 9-2, ¶ 11.) However, they have expressed a fear of prosecution if they engage in such conduct. (Doc. 2, ¶¶ 35-36, 38; Doc. 9-1, ¶¶ 11-14; Doc. 9-2, ¶¶ 11-14.) Lawson and Hutchison also allege that they breast feed their non-infant children and express milk in public and do not know (1) how much exposure is “necessarily incident” to these activities and (2) whether they can breast feed their non-infant children at all without violating the New Ordinance. (Doc. 2, ¶¶ 32-34, 37; Doc. 9-1, ¶ 15-18; Doc. 9-2, ¶¶ 15-18.)

II. DISCUSSION

A. Standing

The Court addresses standing first because “[i]t is well established that standing is a jurisdictional prerequisite that must be resolved before reaching the merits of a suit.” City of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir.2007). Standing “requires establishing three elements: (1) that [the plaintiff] suffered concrete, particularized injury in fact; (2) that this injury is fairly traceable to the challenged action of defendants; and (3) that it is likely that this injury will be redressed by a favorable decision.” 281 Care Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

1. Lawson & Hutchison

Defendant contends that Lawson and Hutchison have not demonstrated the necessary injury in fact because neither of them have been prosecuted or demonstrated a sufficient fear of being prosecuted. Neither Lawson nor Hutchison have been prosecuted under the New Ordinance, but the Court concludes they have an imminent injury because (1) they have alleged a sufficient fear of prosecution and additionally (2) with respect to their Free Speech claim, they have been forced to curtail conduct they claim is protected in order to prevent that prosecution.

To satisfy the injury requirement a plaintiff need not plead that an actual injury has already occurred; a threat of injury may be sufficient. “One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014). A person need not violate the allegedly unconstitutional law in order to challenge the law’s constitutionality. E.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); Steffel v. Thompson,

Related

Free the Nipple v. City of Fort Collins
216 F. Supp. 3d 1258 (D. Colorado, 2016)
Fort Des Moines Church of Christ v. Jackson
215 F. Supp. 3d 776 (S.D. Iowa, 2016)

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Bluebook (online)
153 F. Supp. 3d 1037, 2015 U.S. Dist. LEXIS 174025, 2015 WL 9595628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/free-the-nipplespringfield-residents-promoting-equality-v-city-of-mowd-2015.