In August 2014, Sonoko Tagami was in Chicago participating in GoTopless Day—an annual celebration of women’s suffrage. The police cited her for violating a city ordinance prohibiting public nudity.
The City of Chicago’s public-nudity ordinance is quite specific. It prohibits appearing in public “in such a manner that the genitals, vulva, pubis, pubic hair, buttocks, perineum, anus, anal region, or pubic hair region of any person, or any portion of the breast at or below the upper edge of the areola thereof of any female person, is exposed to public view or is not covered by an opaque covering.” Tagami challenged her citation on First Amendment grounds, arguing that her nudity on GoTopless Day was a form of protected speech.
The Seventh Circuit, in a 2-1 decision, disagreed with Tagami and ruled for the city. The Court found that the ordinance prohibits conduct, not speech. Although the First Amendment does protect certain kinds of “expressive conduct” (like flag-burning), the Court found that being nude is not “inherently expressive,” and thus not protected by the First Amendment. The Court rejected Tagami’s argument that her nudity, taken in context with GoTopless Day and the message participants were conveying, brought it within the First Amendment’s protection. (Tagami also challenged the ordinance on equal-protection grounds, claiming that the portion prohibiting bare breast applies only to women. She lost that challenge too.)
Judge Rovner, dissenting, strongly made her case that Tagami was engaging in speech, not conduct:
“There could not be a clearer example of conduct as speech than the one here. Tagami was not sunbathing topless to even her tan lines, swinging topless on a light post to earn money, streaking across a football field to appear on television, or even nursing a baby (conduct that is exempted from the reach of the ordinance ). Her conduct had but one purpose—to engage in a political protest challenging the City’s ordinance on indecent exposure. Tagami engaged in the paradigm of First Amendment speech—a public protest on public land in which the participants sought to change a law that, on its face, treats women differently than men. It is difficult to imagine conduct more directly linked to the message than that in which Tagami engaged.”
Case: Tagami v. City of Chicago, No. 16-1441 (7th Cir. Nov. 8, 2017) (opinion here)