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Document Type

Note

Publication Date

Summer 8-1-2021

Publication Citation

28 Indiana J. Global Legal Studies 1 (2021)

Abstract

How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order. Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples and the strength of a community's moral standards.

Despite the First Amendment's deep concern for protecting counter-majoritarian speech and minority points of view, recent cases have

shown that the full freedom of speech does not extend to women who wish to repossess the nipple's narrative. By exposing their breasts in public, these women attempted to use their nipples as a form of symbolic speech and communicate their antipathy towards laws that sexualize the female body. But the laws that sexualized their breasts also silenced their nipples, and these cases both ended in courts denying First Amendment protection to topless protests.

America is not the only jurisdiction that does not have an answer to the legal conundrum of public nudity as protest speech. One man recently challenged the United Kingdom and European Union through his single-minded determination to undermine centuries worth of custom and convince people to embrace public nudity. Steven Gough, the so-called "naked rambler," has made it his mission to use his own naked body as an instrument of protest against inherited social norms hostile to public nudity.5 His assertion that his public nudity is a form of expression that merits protection under Article 10 of the European Convention on Human Rights (officially called the Convention for the Protection of Human Rights and Fundamental Freedoms) raises critical questions about how legal systems ought to treat civil liberties that challenge social norms and traditional standards of morality.

The two US cases that challenged the First Amendment's treatment· of the female nipple, Tagami v. City of Chicago and Free the Nipple v. City of Fort Collins, were instructive in their absolute failure. The courts in both cases applied long-established tests to determine whether topless protests amounted to symbolic speech with full First Amendment protection. The specifics of the tests themselves, as well as how the courts applied them, demonstrated the predetermined futility of the plaintiffs' plight. Within the context of symbolic speech, the female nipple uniquely challenges existing legal standards by both its multifaceted cultural identity and its physical limitations. Yet, instead of acknowledging that existing standards of symbolic speech do not account for the nipple's particular limitations, the courts in both cases allowed the law to trap the nipple in a self-perpetuating cycle of unprotected speech.

This note will begin by exploring the two recent legal challenges to the First Amendment's treatment of the female nipple. Both cases emerged out of the plaintiffs' reactions to local public-nudity ordinances and their dissatisfaction with laws that legalized disparate treatment of male and female bodies. The courts' treatment of both cases only validated the plaintiffs' arguments that the law does not treat female bodies with careful and unbiased consideration. ·Second, this note will examine two legal tests cited by the courts in their rejection of the plaintiffs' claims that topless protests are constitutionally protected symbolic speech. These are the Spence test, which controls what expression counts as symbolic speech, and the O'Brien test, which controls whether the government may suppress symbolic speech. This note will also consider the legal struggles of Steven Gough and his unwavering commitment to changing general attitudes towards public nudity. The third section will consider two cases involving Gough: one in which the United Kingdom sought to impose criminal sanctions against him, and another which Gough brought before the European Court of Human Rights (ECtHR), in which he challenged the UK government's treatment of his right to freedom of expression. Finally, this note will analyze the problems with the US courts' treatment of First Amendment protections related to the female nipple and the similar flaws in the way the European Union and UK government handle nude protests.

The goal of this note is not to suggest that women could end, or even significantly influence, the patriarchal pallor of American culture if only they were allowed to show their nipples in public, nor that a single man can change centuries of inherited prejudice against public nudity. Indeed, the author remains agnostic regarding the value of topless and nude protests and whether they are sufficiently expressive to warrant First Amendment or Article 10 protection. However, regardless of whether the courts should recognize topless protests to be symbolic speech or nude protests to be socially permissible, both the American and European courts must assess the merits of such claims fairly. Under the present metrics for symbolic speech and freedom of expression, both court systems clearly do not treat the nipple or the naked body fairly. Therefore, this note aims to demonstrate that under the current legal standards for evaluating First Amendment claims, women will never have the opportunity to use their nipples to make statements about entrenched cultural sexism because that entrenched sexism has already permeated First Amendment jurisprudence, and that similarly conservative thinking is baked into the European right 'to freedom of expression.

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