The Volokh Conspiracy - Atlanta Councilmembers Propose Ban on Baggy Pants:

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.

	[Eugene Volokh, August 24, 2007 at 5:30pm] Trackbacks Atlanta Councilmembers Propose Ban on Baggy Pants: 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.