Councilmembers C.T. Martin, Ceasar C. Mitchell, H. Lamar Willis, and Ivory L. Young, Jr. are proposing a citywide ban on "[t]he indecent exposure of [one's] undergarments." The goal: stamping out "the dress fad of wearing low hanging/saggy pants which exposes ones underwear."
Such ordinances are bad for many reasons, but consider just one set, which I blogged out when a similar law was proposed in Dallas: How does one distinguish impermissible dress from the permissible? Much underwear, after all, is not easily distinguishable from many swimsuits.
Would the rule be that it's OK to wear a boxer or a brief or a swimsuit top if you're wearing it alone, OK if you're covering it up with pants or a shirt, but not OK if it's halfway in between? (What about a woman who's wearing a swimsuit top with a shirt thrown over it, but the shirt hanging open in front, so that the swimsuit top is visible?) Would the law distinguish by fabric, on the theory that swim trunks and bikini tops tend to be made of a different fabric than briefs, boxers, and bras? Where would sport bras fit?
The councilmembers react to all this by punting: They recognize that they can't ban all exposure of undergarments, but want to ban some exposure of undergarments, so they settle on banning "indecent" exposure. But that just means that individual judges, prosecutors, and perhaps jurors have to decide which displays are "indecent."
Perhaps the term "indecent" may be sensible in those areas in which there's something of a settled socially accepted meaning for it — "indecent exposure" of one's body parts might qualify, though even there the term is problematic, and well-drafted indecent exposure laws define the prohibited conduct in detail. But I know of no such accepted meaning for "indecent exposure of ... undergarments."
Is showing the top inch of a pair of boxers "indecent" (setting aside whether it's ugly or associated with what one sees as a bad attitude)? What about letting a bra strap occasionally peek out from a string top? Does a white tanktop of the sort often worn by men in cold climates under a shirt count as an "undergarment[]" — and, if so, does wearing just such a tanktop (and pants, of course) qualify as "indecent"?
I accept that the government may sometimes ban certain kinds of offensive public behavior, simply because it's offensive in particular ways. I'd keep the zone quite narrow, but I do think that public nudity can properly be banned; even many of those who disagree with me on that would, I take it, allow bans on public sex. I also accept that some laws will inevitably be relatively vague; consider laws punishing criminally negligent homicide, for instance. But such vagueness is a weakness of laws, not their strength; it should only be accepted when it's necessary to do something really important. Banning "indecent exposure of ... undergarments" doesn't qualify.
Clayton Cramer, who is more upset by the underlying practice than I am, nonetheless shares my view about the weaknesses of trying to ban the practice. Thanks to Nolan Reichl for the pointer to the story.
Is there any legal merit to these kinds of accusations? Can the law be overturned on these grounds? If not, why would they even bother to make the case. Maybe this could be discussed/answered in another thread.
Fco: The general answer is the law can't be overturned simply because it has a racially disparate impact (consider how many laws have such an impact), but can only be overturned if it's shown that the law was motivated by the desire to have that racial impact. I take it that such discriminatory intent would be hard to show in this case. (Note, for whatever it's worth, that all four of the councilmen who are listed as the law's sponsors appear to be black.)
It is a legislative attempt at parenting where parents are not doing a good job, and it will therefore fail in practice whether or not it fails in the courts.
Hmm, this also lends some terror to the helpful, "Your slip is showing." comment. :-)
That said, anybody who thinks hip-hop clothing is racial does not get out much these days. If anything, this is cultural (fashion?) profiling and would probably be easier to prove that angle if this is in fact actionable.
Lyrics (excerpt):
It's hard to believe they really think they can draft a bylaw that makes it unlawful to expose the top 1" of a pair of boxer shorts while still leaving it perfectly lawful for guys to wear speedos at public swimming pools.
Are the police really authorized to investigate his defense by pulling down his pants even further?
Or, alternatively, is this, like parking enforcement, really a revenue-GATHERING measure, in effect a "droopy pants tax" enforced through the sartorial equivalent of meter maids? If so, I'd also vote for the imposition of a similar tax/fine aginst those persons exceeding the AMA definition of obesity who are wearing spandex bike shorts.
Evidence, unfortunately, that sanctimonious silliness is not confined to WASP conservative Southern politicians...
R. Gould-Saltman,
once, but no longer, the proud bearer of an inappropriate hairstyle.
Unfortunately, the former is easier to think up and sell, so we get more of it.
I wasn't sure who Wes Johnson was referring to--those who wear baggy pants or the Atlanta City Council members making this proposal.
Then the answer came to me: BOTH groups.
Global cooling, nuclear winter (to be caused by dust amounts tiny by comparison with your average volcano), long hair, short hair, long skirts, short skirts, beards, tight pants, loose pants, cell phones, ghetto blasters, low riders, loud pipes, ....
Facts are no clothes in the case of people like me might be an actionable offense but most of the rest are not. Well the ones involving noise and smell should be.
Richard Gould-Saltman has it right. The Atlanta city council surely has better things to do.
Resurgens!
I'm aware of esthetics being legitimate for zoning purposes, but that's quite a bit different. And it's not like any piece of displayed underwear is indecent. Not only that, indecency regulations under the police power talk about the use of the police power to protect the public's health, safety, morals,
with emphasis on the morals. I don't see how the display of a pair of boxer shorts (and not naughty bits) can legitimately claim any sort of relation to morals. (Also note that the morals part is slowly evaporating as courts have realized that a lot of "morals" are mere prejudice.)
I'm of several minds on Atlanta's efforts, but I'm in complete agreement with Liberia's. It's true that Liberia's constitution is distinctly different from our own. For example, while I lived there the Liberian Supreme Court re-affirmed that citizens had no constitutionally-protected religious exemption from reciting a pledge -- Chief Justice Chea Chepo, writing for the majority, explicitly reminded the ACLU (which, according to the local press, had funded the defendants' case, although I'm not at all sure of the veracity of the accusation) that "Liberia does not begin with an 'A' " -- I'm putting this down from memory, but it was in several Monrovian papers c. 1988. But perhaps, in simply examining the issues in light of common sense, this comparison will help to illustrate Justice Thomas' perspective in BongHits4Jesus.
Prohibiting saggin' in public schools is one thing; prohibiting saggin' on city streets, something very different. And I'd assume that prohibiting saggin' in a commercial establishment is something yet again different. My favorite bar in St. Paul, MN prominently features a "no saggin' " sign (complete with a red circle/slash around and through a pair of baggy pants surmounted by a, well, you know what it's surmounted by.)
I've read that the baggy pants are a boon to cops, since the idiots wearing the pants can't run in them or run right out of them.
1. Represent a consensus--not just 51% support.
2. Are clear as to what is prohibited. Hence, laws that prohibit the exposure of a woman's nipple are clear as to what is banned. Underwear, without a much more precise definition, is a legal quagmire.
Well, it's protected by the Right to Bare Arms.
(cringes) "Forgive, Master!..."
So you keep the status quo on the books even though it has only 49% support?
I would encourage the Atlanta city council to appoint a subcommittee to look into shirt tail regulations.
It's often difficult to define what religion is, but would liberals agree to simply throw out the establishment clause as unworkable because we can't always define what's religious and what's not? There are a lot of shades of grey racially, but would anyone seriously agree to throw out racial discrimination laws because we can't always define what race a person is?
Nobody actually buys this argument for anything they actually support or agree with. Try to apply it to anything you actually favor and you'll see it can be equally well used for anything -- and is complete horse swill unless one doesn't want the law involved used anyway. In short, it's only used as an argument for things one is really objecting to on other grounds that one is unable or unwilling to articulate or admit. It's a code phrase that's only applied to things one doesn't approve, neve to things one does.
The issue isn't that people favoring the law can't define what's indecent. They can. The issue is that Professor Volokh doesn't like their definition.
Fine, but for crying out loud, be honest you don't like it. Argue for general liberty of the individual or whatever you want, but the "you can't define it" is just plain silly.