District Judge Fred Biery, known for his lively and pun-filled writing as in last year’s First Amendment Establishment Clause opinion on school prayer, has issued a suggestive order denying a preliminary injunction in “The Case of the Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie.”  (The actual name of the case is 35 Bar and Grille, LLC v. City of San Antonio).

In this First Amendment challenge, plaintiffs are businesses employing “exotic dancers” who claim that a 2012 amendment to the San Antonio Code of Ordinances (see Chapter 21, Article IX, Sexually Oriented Businesses) would require them either to submit to licensure or require their dancers to switch from pasties to bikini tops.  The businesses claim infringement of the dancers’ free expression and that San Antonio has not satisfied its burden under the secondary effects doctrine to demonstrate harm.

Noting that customers might better enjoy a performance by the fully-clothed Miss Wiggles (pictured), Judge Biery encourages the parties to engage in “reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.” 

While Biery’s opinion does illustrate the tendency of many courts to trivialize First Amendment claims regarding nudity, his previous opinions are evidence that his light treatment of partially clothed expression is not unique.

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