Saggy Pants and the First Amendment
posted by Neil Richards
The city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.
It’s an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing’s expressive qualities, even when such expression contains profanity. On the other hand, notwithstanding the Cohen line of cases, indecent exposure laws requiring people to wear clothes are probably constitutional under some kind of residual (and weak) power to require decency in public. Saggy pants laws form a kind of hybrid case, regulating in terms of indecent exposure on the theory that undergarments cannot be displayed in public, but seem to be directed at the expression of identity through clothing. The harms that these laws seek to remedy are those of personal offense and outrage – something like “I am offended by the dress of that young man over there.” Laws that try to protect hurt feelings from being upset (particularly in public) tend to do very poorly when subjected to First Amendment analysis. Moreover, because saggy pants laws single out a particular fashion for regulation, I would think that they raise serious constitutional problems under the First Amendment. That said, given the murky government power to enact indecent exposure laws, I’d be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine without the text of an actual ordinance and/or facts upon which to apply it.
But putting First Amendment doctrine to one side, I still think saggy pants laws would be a terrible idea. Our clothes can be a form of personal expression – they are one of the most important ways we project our selves and our identities to the world. The government may decide (and be entitled to) regulate the dress of children in school in pursuit of educational objectives generally, but outside that narrow context, it is up to children (and their parents) to decide how they should dress. Indecent fashion statements, like other forms of expression, are not the kinds of things that the government should be wasting its time, energy, and scarce law enforcement resources on. I would imagine that the Atlanta police probably have more pressing problems to deal with than young people (or maybe even the elderly) showing too much thong. There’s also a significant racial component to this issue, as the fashions being scrutinized are inspired and associated with Black popular culture. This is an additional consideration of constitutional magnitude counseling a light regulatory hand here.
I think that in the long run, we’ll look back on this question with the same incredulity that we now regard the fuss over Elvis Presley’s swiveling hips on Ed Sullivan or the long-haired men and short-haired women of the 1960s. Politics has fashions no less than clothing, and I hope this fashion for these kinds of laws will soon go the way of New Wave hairdos and other regrettable fashion mistakes.