Judge: Challenge of city's topless ban may continue

A federal judge says a lawsuit against the city of Fort Collins and its ban on women appearing topless in public may continue.

U.S. District Court Judge R. Brooke Jackson issued an order Thursday granting one out of three elements of the city’s motion to dismiss the case but denied the other two.

Activists Brittiany Hoagland and Samantha Six, who are members of the national Free the Nipple movement, claim in a lawsuit the city ordinance passed a year ago violates their constitutional rights.

In its motion to dismiss the case, the city was correct in contending going topless is not protected as free speech under the First Amendment, Jackson stated. However, the city did not make a compelling argument that equal protection clauses of the Fourteenth Amendment and the state’s Equal Rights Amendment do not apply.

The ruling is significant in that the judge may be signaling agreement that the ordinance is unconstitutional, said attorney David Lane, who is representing Hoagland and Six.

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“From our perspective, it doesn’t matter which reasons the judge picks,” Lane said. “The judge agrees the statute is very likely unconstitutional.”

The city is not likely to win its case based on the law, Lane said.

“If Fort Collins is smart … they will repeal the unconstitutional ordinance before they have to pay my attorney fees,” he said.

Fort Collins officials issued a statement in response to the ruling, touting Jackson's rejection of the free speech argument.

“The City is glad to see that the Judge has narrowed the issues in this case by dismissing the First Amendment claim,” said City Attorney Carrie Daggett. “As the case moves forward to the hearing on the motion for preliminary injunction, we look forward to the opportunity to present evidence supporting the City’s position that the other two claims are also without merit."

The City Council passed the ordinance almost a year ago after a long community discussion and emotional public hearings, during which supporters of the topless ban far outnumbered opponents.

Hoagland and Six argued the ordinance was sexist and discriminatory because men may appear bare-chested in public but not women.

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Supporters of the ordinance said allowing women to be topless in public would make the city less family friendly, ruin its reputation and potentially place women in danger.

In his order, Jackson stated case law on whether governments may discriminate based on “real” differences between men and women has changed over time.

Differences in the genders may not “be used ‘to create or perpetuate the legal, social, and economic inferiority’ of one sex as governments had once routinely done,” he stated.

In its motion to dismiss the case, the city didn’t “seriously” explain why the plaintiffs’ argument that the ordinance and its justifications are “unconstitutionally grounded in stereotypes and prejudices” was not a viable equal protection claim.

Kevin Duggan is a Coloradoan senior reporter covering local government. Follow him on Twitter, @coloradoan_dugg, and on Facebook at Coloradoan Kevin Duggan.

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