Oklahoma public nudity law still valid

Maybe the Tulsa County Sheriff's Office and the Tulsa Police Department should have a more formal basis for making enforcement decisions than viral news stories.

This September 19, 2019, NBC News story about the City of Fort Collins, Colorado, dropping appeals to a challenge to their public nudity ordinance seems to have prompted legal discussions at Tulsa City Hall and the Tulsa County Sheriff's Office.

On September 25, 2019, KOTV's Lori Fullbright posted a preview of a story that declared that Tulsa officials had decided not to enforce our state and local public nudity laws and that fairgoers could be topless as well.

Tonight, Fullbright had conflicting statements from Tulsa County Sheriff Vic Regalado, who decided that he won't be enforcing Oklahoma's public nudity laws and the City of Tulsa, first announcing that public nudity laws would not be enforced, and then reversing course.

I saw several reports on social media of topless women near the Fairgrounds, and I had a sighting myself, around 7 pm tonight -- a woman in jean shorts and flip flops, and nothing else, walking down Yale Avenue past Memorial Baptist Church.

All of the confusion might have been averted if our city and county officials had bothered to consult the actual court records, which took me a few minutes to locate online. (Tenth Circuit opinions are here. Eighth Circuit opinions are here. Dockets and filings in federal district and appeals court cases can be found at the US Courts PACER website, for which registration is required.) It would also help if our local officials had the courage to recognize and resist federal rulings that amount to legislation from the bench.

No final ruling has been issued by any federal judge on the constitutionality of the Fort Collins city ordinance, and no ruling will be issued. The plaintiffs asked for a preliminary injunction to prevent Fort Collins from enforcing the law while the case was pending, and Federal District Judge R. Brooke Jackson, a Harvard Law grad and Obama appointee, granted it. The City of Fort Collins appealed the injunction, but a bare 2-1 majority of a three-judge 10th Circuit panel upheld the injunction and remanded the case back to the District Court. The City of Fort Collins entered a stipulation that made the District Judge's injunction permanent, and the case was terminated.

Here is the case summary from the panel's majority opinion (emphasis added):

The city of Fort Collins, Colorado, enacted a public-nudity ordinance that imposes no restrictions on male toplessness but prohibits women from baring their breasts below the areola. See Fort Collins, Colo., Mun. Code § 17-142 (2015). In response, Free the Nipple, an unincorporated association, and two individuals, Brittiany Hoagland and Samantha Six (collectively, "the Plaintiffs"), sued the City in federal district court. They alleged (among other things) that the ordinance violated the Equal Protection Clause, U.S. Const. amend. XIV, § 1, and they asked for a preliminary injunction to halt enforcement of the ordinance. The district court agreed. It enjoined the City, pending the resolution of the case's merits, from implementing the ordinance "to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public." Free the Nipple-Fort Collins v. City of Fort Collins, 237 F. Supp. 3d 1126, 1135 (D. Colo. 2017). The City then brought this interlocutory appeal to challenge the injunction.

The appeal presents a narrow question: Did the district court reversibly err in issuing the preliminary injunction? We answer no. Exercising interlocutory jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court's judgment and remand the case to that court for further proceedings consistent with this opinion.

The majority opinion was written by Gregory Phillips, an Obama appointee. He was joined in his opinion by a Clinton appointee, Mary Beck Briscoe.

Harris Hartz, a George W. Bush appointee, wrote a dissenting opinion, attacking the plaintiff's objection that the law enshrines culturally-conditioned stereotypes that have no scientific basis.

Further, even if notions of the erotic are purely culturally based, it is unclear why that is relevant to the validity of indecency laws. The purpose of those laws is to reduce antisocial behavior. Such laws must deal with the real world. Legislation itself is rational even if the behavior it attempts to control is irrational (such as sexual assault purportedly caused by objectification of the female body). What would be the state of society if legislation could control only rational behavior? A regulation designed to reduce the antisocial effects of irrational thinking does not constitute an endorsement of that irrational thinking. Are laws regulating pornography and obscenity invalid if the societal harms they are intended to prevent are caused by cultural influences rather than purely biological ones? The only assumption about men and women underlying the Ordinance is that because of the erotic potential of female breasts, their public exposure will induce misconduct.

Earlier today, Oklahoma Attorney General Mike Hunter weighed in on the matter, pointing out that other Federal courts had upheld similar laws:

"The Tenth Circuit's preliminary decision in the Fort Collins case - a case that has now ended without a full adjudication - does not change local and state laws in Oklahoma on the subject," Hunter said in a statement.

The city of Fort Collins declined to appeal the ruling to the U.S. Supreme Court....

Hunter said the 10th Circuit's ruling is out of line with most court rulings on the topic.

"The majority of courts around the country that have examined this issue have upheld traditional public decency and public nudity laws," Hunter said. "These courts have recognized that states and political subdivisions have a legitimate interest in prohibiting public nudity as traditionally defined."...

Oklahoma City's public indecency rules ban women from going topless in public.

A spokeswoman for Oklahoma City police said the appellate court's ruling is specific to Fort Collins, Colorado and does not apply in Oklahoma. City police will continue to enforce public indecency laws as outlined by state law and city ordinance, said police Sgt. Megan Morgan.

"Someone in OKC who is in violation of the law could be cited and/or jailed as this is a misdemeanor crime," she said.

One contemporaneous example is a case (Case No. 15-3467-CV-S-B) brought against Springfield, Missouri, by the local chapter of Free the Nipple, with the help of the state chapter of the ACLU. The case was heard by Beth Phillips, Chief Judge of the United States District Court for the Western District of Missouri, an Obama appointee. Springfield tightened its public nudity ordinance in September 2015. FTN filed a suit the following month. Springfield modified its ordinance in March 2016. FTN amended its complaint to challenge the revised ordinance. The 2016 ordinance was upheld by Judge Phillips, then upheld on appeal in July 2019 by a unanimous three-judge panel in the Eighth Circuit Court of Appeals: Chief Judge Lavenski Smith and William Duane Benton, appointed by George W. Bush, and David Stras, appointed by Donald Trump. You can read the appeals court ruling in Free the Nipple v. Springfield here. The court cited Ways v. City of Lincoln, issued in 2003, as precedent and wrote:

Springfield's ordinance is substantially related to its important governmental interests in promoting public decency and proscribing public nudity to protect morals, public order, health, and safety.

The injunction of the 10th Circuit panel is an attack on the right of American communities to govern themselves. It is an effort to impose San Francisco's perverted moral notions on Sallisaw.

I am reminded that this is the sort of outcome that Phyllis Schlafly warned would occur if we ratified the Equal Rights Amendment. ERA opponents warned that ratifying the ERA would abolish the right of the American people, through their elected representatives, to draw distinctions between men and women where appropriate. And so the ERA fell short of the required number of states for ratification, despite Congress extending the original ratification period. Nevertheless, the unaccountable federal courts have chosen to impose their moral vision on the people of the United States, implementing the ERA through the back door of judicial activism.

The Eighth Circuit now has 11 judges appointed by Republicans and only one appointed by a Democrat, Barack Obama. The Tenth Circuit has seven Democrat-appointed judges and five Republican-appointed judges. I can think of two Tenth Circuit judges and a Colorado federal district judge that need to be impeached.