Nude Toddlers

Coppertone_sign_miamiAre toddlers on the Jersey Shore at risk of arrest for public nudity? Trentonian columnist Jeff Edelstein thinks so. As he tells the story, Edelstein and his wife, after a visit to the beach at Spring Lake, New Jersey, removed the bathing suits of their two- and four-year-old children at the public shower. A “beach supervisor” called the police, who let them leave with a verbal warning. 

While some public nudity laws have age limits, those in the town of Spring Lake do not. It may seem unlikely that a toddler (or her parental accomplice) would be arrested for public nudity, but, as Mr. Edelstein and some Internet commenters observe, such laws can be used to enforce social mores or even harass outsiders.

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Cross-Dressing As Evidence of Prostitution or of Art

Specific laws criminalizing so-called cross-dressing – – – wearing clothes not appropriate for one’s sex/gender – – – are now relatively rare.  Even in the 1970s, courts opined that the very notion of cross-dressing was losing some of its coherency.  Meanwhile, other courts were declaring that such laws were unconstitutional as applied to persons they described as “true transexuals.”

Instead, more indirect policing of gender appropriate clothes occurs.  For example, a Memphis television station reports that three men were arrested for “prostitution” seemingly based on evidence that they were wearing “provocative female attire.”  While the report is somewhat unclear as to whether or not there was other proof of solicitation for commercial sex, the mention of female attire – – – and provocative at that – – – by law enforcement seems to be offered as sufficiently explanatory.


“Javi and Gabi” by Jon Uriarte

Meanwhile, a photography project by Jon Uriarte has been garnering attention; it consists of full-length portraits of men wearing the clothes of their female partners, “taken in the space shared by the couple.”  It’s interesting because it conveys the degree of gender segregation – – – or not – – – in clothing.

And it is also interesting to contemplate which if any of Uriate’s subjects could be charged with prostitution given his attire. 




Ocean City Planning Its Own Boardwalk Dress Code

645px-20110927-0832aWith the widespread news that the town of Wildwood, New Jersey has adopted a dress code for its boardwalk, despite its questionable constitutionality, at least one politician in Ocean City, Maryland reportedly thinks that town should do the same.

The so-called “decency law” would criminalize the way people dressed.  The law is reportedly prompted by the desire to prevent crimes and violence, but the logical link between the way people dress and the way people rob others is weak.   If a man is shirtless, does that mean he is a mugger?  And if he is, does wearing a shirt mean he will not steal?

Here’s more on the (unconstitutionality) of government attempts to make men wear shirts or not “sag” their pants displaying their underwear and there’s more in the book, Dressing Constitutionally.

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Mandating Boardwalk Attire is Unconstitutional

Can a municipality mandate a dress code?   The short answer is generally no, at least not a constitutional one.  Although there are certainly laws prohibiting public exposure or indecency, the government cannot stretch the concept of “indecency” to include respectable or tasteful.

The proposal to be considered by Wildwood, a coastal town in New Jersey  famous for its boardwalk, reportedly seeks to maintain its “family friendly” atmosphere by mandating shirts (seemingly on men and women) after 8pm, and prohibiting lowered waistbands – – – a fashion often known as “sagging” – – – by declaring that the waist band of shorts, swim-trunks, pants and/or skirts shall not be worn more than 3 inches below the wearer’s waist – interpreted to mean at a level below the crest of the ilium, so as to expose either skin or garment underneath – at any time.

800px-Wildwood_boardwalk_Family_Fun_Night_parade_at_Wildwood_AvenueA similar ordinance from Riviera Beach, Florida, passed by voter referendum, was quickly found unconstitutional by a judge as violating the constitutional liberty interests of those wearing the fashion.  In Flint, Michigan, a law enforcement memo instructing officers to arrest those who were “sagging” prompted a response from the ACLU and a speedy resolution.  

Requiring shirts, especially for men, is similarly unconstitutional.  In the 1980s, an ordinance from Florida’s  Palm Beach that mandated shirts was challenged by a male attorney who had been jogging topless.  In DeWeese v. Town of Palm Beach, 812 F.2d 1365 (11th Cir. 1987), a federal appellate court found that the town did not have a legitimate interest in regulating “the dress of its citizens at large,” as encompassed by its stated purposes of maintaining the quality of life and unique character of Palm Beach. Further, “prohibiting male joggers from appearing in public without a shirt” was irrational, and any justification was beyond the court’s “imagination.” 

Such findings of unconstitutionality are not new.  In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937),  New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.”   The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat”  and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.”  Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”  

What we wear on public streets – – – including boardwalks – – – cannot be legislated unless it crosses the line of exposure of traditional “private parts” such as the genitals, or in most cases, women’s breasts.  A boardwalk is not a school or even a privately owned restaurant, places in which more leeway is allowed, although there are still constraints.  Otherwise, state laws could mandate everyone wear green headbands on Thursdays or Congress might even be able to proclaim seersucker Thursdays in the summer.   The boardwalk will just have to remain a dress-code free zone.

The Book


The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear – or don’t – is ubiquitous. From a noted constitutional scholar and commentator, this book examines the rights to expression and equality, as well as the restraints on government power, as they both limit and allow control of our most personal choices of attire and grooming.

See the Table of Contents and Read the Introduction here

CANADA Book Launch/Presentation at Osgoode Hall September 23, 2013
UK Book Launch/Presentation: November 26, 2013

Listen to a 5 minute interview with Jacki Lyden aired on NPR’s ALL THINGS CONSIDERED here;  a 12 minute interview with Mocrieff aired on NewsTalk IRISH radio here (starts at 35:00); a 60 minute interview on NPR’s The Diane Rehm Show here; a 20 minute interview with Brian Lehrer of WNYC  here;  a 15 minute interview on LA’s KPCC  “AirTalk” with Larry Mantle on school dress codes here;  a 60 minute discussion on Wisconsin Public Radio’s The Joy Cardin Show here;  a 15 minute discussion with Margaret Ramirez on CUNY’s “Book Beat” here.

Read an interview with Carrie Murphy on the fashion site Refinery29 here; an interview on UK’s LawBore here; a BBC article on the book here; a review by Dean and Professor Kim Brooks in Jotwell here.


at your local independent bookstore,
direct from Cambridge University Press (PB US $32.99),
or as an e-book (Kindle app) (US less than $15)

Court Decides: Bikini v. Pastie

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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San Francisco Ordinance Banning Nudity

cross-posted from Constitutional Law Professors blog November 15, 2012

San Francisco Ordinance 120984 banning public nudity was the subject of a constitutional challenge filed in federal court before it was even officially adopted.

The complaint alleges that the proposed ordinance violates the First Amendment and the Equal Protection Clause.  One of the more interesting arguments flows from one of the proposed ordinance’s two exceptions: any person under the age of five years, and “any permitted parade, fair, or festival held under a City or other government issued permit.”

The more generalized First Amendment challenge to a law banning nudity is not likely to succeed under the federal constitution.


However, the California constitution could certainly be construed to protect nude expression.  And even more compelling are the political and social arguments presented to the San Francisco Board of Supervisors that focus on San Francisco’s identity as a haven for free expression, including nudity.