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.
September 19, 2007 at 12:50 pm
Posted in: Culture, Current Events, First Amendment, Politics, Race
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Responses (17)
Patrick S. O'Donnell - September 19, 2007 at 1:23 pm
I agree. We have to take a look at the big picture and appreciate that fashions, fads, and social norms do indeed change. Nonetheless, to the extent that something like the, or a, principle of transgression (relentless pushing of the envelope, routine violation of rules, norms, conventions, what have you) itself is a ubiquitous soci-cultural norm in not a few circles or among many individuals in our society one wonders if there is a need, at some point, to draw a (legal) line. Boxers and thongs now, butt cracks and ? down the road. Or, how to change the disposition, the penchant, the proclivity, for the norm of “transgression for transgression’s sake” (or something like that…or at least so it seems)? I’m perhaps an old fogey and Confucian in this regard, but does it not seem that etiquette, social grammar, social norms, conventions, rules and laws are not held in high regard and acknowledged more often in the breach than observance of late? Mind you, I’m not neurotic about “law and order,” but there does seem to be something about the contemporary social climate that lends itself to little appreciation for the role of etiquette, informal rules, conventions, and laws, as everyone imagines himself or herself to be the exception…. I do think the pace of technological change and larger socio-economic dynamics (e.g. the centripetal and centrifugal forces of globalization) help explain some of this phenomenon, and I realize this raises far broader issues than those broached in your post, but I’m curious as to your thoughts (and those of others) about this.
Simon - September 19, 2007 at 2:02 pm
I’m sorry, but the suggestion that First Amendment doctrine might stretch to protecting a right to wear one’s waistline at knee-level is the kind of absurd overreach that makes people sympathetic to Bork’s “only explicitly political speech” theory. I’m not saying that the argument won’t fly – I’m not familiar enough with first amendment “expressive qualities” caselaw to say that – but to correlate “fuck the draft” with “look at my underwear” reads like a purposeful satire of the academy. One can’t help but adapt then-Justice Rehnquist’s Carey dissent: Those who fought valiantly but vainly defended the heights of Bunker Hill in 1775 made it possible that men such as James Madison might later sit in the first Congress and draft the Bill of Rights to the Constitution. The post-Civil War Congresses which drafted the Civil War Amendments to the Constitution could not have accomplished their task without the blood of brave men on both sides which was shed at Shiloh, Gettysburg, and Cold Harbor. If those responsible for these Amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts would one day be taken to enshrine in the Constitution the right to wear one’s pants at half-mast, it is not difficult to imagine their reaction.
Neil Richards - September 19, 2007 at 2:43 pm
What about a law that required men to wear ties, or banned jeans in public? Laws that mandate “acceptable” attire are attempts to control the cultural climate, and wearing inappropriate clothing is a form of cultural dissent. Punk attire, hippy clothing, zoot suits, American flag-apparel, golf wear or basketball wear away from the green or court – these are cultural uniforms that can express a larger message about who the wearer is and what they stand for. It’s also why some of them are found to be threatening by “ordinary” people. “Fuck the draft” is certainly closer to the core of what the First Amendment protects, but that speech also took place in a courthouse (where more regulation is conceivable due to the captive audience problem) rather than on the streets. And as my post notes, I’m not concluding that such laws are necessarily unconstitutional, but that constitutionality aside, such laws are a bad idea and go places that law shouldn’t.
As for your citation of my former boss the late Chief’s Carey dissent, I think he would probably have agreed with you on this, but I also think he would have dissented in Cohen, too.
Dudley - September 19, 2007 at 3:52 pm
As Eric Posner suggested in his book on social norms, I think this will blow up in their collective face. Baggy jeans are now not just a fashion statement, they’re powerful political speech and a statement against white, male, upper-middle class hegemony: “Screw yourself, whitey!”
RMCACE - September 19, 2007 at 8:34 pm
This is an easy one. The first plaintiff in the civil rights suit will say that “this style originated in prison where belts are prohibited. I am doing this to show solidarity with people imprisoned because of the terrible War on Drugs. I am making a political statement and that is what I want to convey. Too many black men are imprisoned and I am showing my support for them.” BOOM, case over.
Of course, because the style originated in prison, isn’t it interesting that government essentially requires the dress in prison, but prohibits it in public. Of course, you can change that to say the government permits it in prison, but prohibits it in public, which makes it sound really stupid.
Just a Dad - September 20, 2007 at 12:25 am
Call me old fashioned, but I don’t want my kids exposed to hoodlums’ buttcracks all over town. And in the absence of constitutional prohibitions on such laws, I’m quite happy to see my elected officials clean up the streets.
As for your slippery-slope arguments: First, if the non-tie-wearing population demonstrated a substantially heightened propensity to socially destructive behavior, I might support a tie requirement. (Same with your jeans point.)
Just a Dad - September 20, 2007 at 12:31 am
Incidentally, a few weeks ago I came across a grown woman urinating into a drain near my subway station. She made a public scene out of it, quite openly trying to attract our attention (i.e., shouting and such).
She was far away from passersby (thank God), and she left no urine on the street, so she posed no immediate threat to the public health.
That said, I wish she had been arrested. Even if she intended her act to be “expressive.”
Simon - September 20, 2007 at 9:04 am
What about them? I don’t think they’re a good idea, but to say they violate the First Amendment strikes me as little short of absurd. Now, if you wanted a closer case, how about a ban on Che Guevara t-shirts? Conceivably, such a shirt could be a political statement, although it usually is not (most wearers would likely struggle to identify who he was or what he did beyond the extremely abstract level of a “cuban revolutionary,” which is rather like identifying Neil Armstrong as a pilot).
I grant that your you’re “not concluding that such laws are necessarily unconstitutional,” but I think that to even call it an “interesting question” gives it more credibility than it deserves. This is the sort of thing that ought to help litigants discover the sharp side of Rule 11, not the limits of the First Amendment. And as to whether “constitutionality aside, such laws are a bad idea and go places that law shouldn’t,” I don’t think whether they’re a good idea has much to do with whether they’re Constitutional, but would you think the first amendment question was as “interesting” if you didn’t oppose the laws as a question of policy?
Neil Richards - September 20, 2007 at 9:33 am
Absolutely. I think that a policy one likes that appears unconstitutional is even more interesting than this case for me. FWIW, I don’t particularly find either of the fashions being regulated to be fetching, but calling for the elimination of “hoodlums’ buttcracks” shows that there is almost no government interest here, and that these laws appear to be motivated more by distaste for the fashion, the image being expressed by the fashion, or in some cases outright racism. None of these are a sound basis for policy.
And I had always thought that the “fashion police” was a myth.
Simon - September 20, 2007 at 10:13 am
Which is why they ought to be struck down under the “unsound policy” clause of the Fourteenth Amendment.
Neil Richards - September 20, 2007 at 10:21 am
Sarcasm noted, but it is misplaced. In the last post, I was talking in policy terms, for which soundness is a legitimate consideration – these laws are bad policy. To the extent that they are also irrational, you might be right that they fail rational basis review under the Due Process Clause, but that’s not my argument.
Simon - September 20, 2007 at 10:37 am
Sure, but I couldn’t resist.
(And I wouldn’t buy a substantive due process challenge of any stripe.)
M. - September 20, 2007 at 2:08 pm
Nice to see that some in the US are becoming less antagonistic to the current Iranian regime’s policies on personal liberty (”Newspapers in Iran have quoted the police as saying that 16,000 women and 500 men have been cautioned in the last week over their improper clothing”-BBC, 4/29/07). There is potential here for cultural exchange programs, and sharing of knowledge on enforcing dress codes in public. This might help reduce the bad feelings between the two countries.
Just a Dad - September 20, 2007 at 3:36 pm
“calling for the elimination of ‘hoodlums’ buttcracks’ shows that there is almost no government interest here”
I gather there’s “almost no government interest” in banning public nudity?
You may not like those sorts of regulations, but local government always have had an interest in regulating appearance.
The Iran comparison is just silly. You’re pointing to a slippery slope: “If we allow the regulation of some aspects of appearances, then we’re endorsing burkas.” Of course, I can just as easily point to the slope in the other direction: “If you oppose this type of regulation, then you oppose any regulation of appearance, including public nudity bans.”
Of course, since you’re the ones endorsing absolutist, ideological positions on this, you’re the only ones whose arguments fall prey to the slippery slope. I recognize that absolutist positions on this issue are unhelpful — either extreme is just silly. Rather, we should recognize that the government sometimes does regulate expression, and look for the best compromise between the two extremes.
Frankly, I’m not so scared of the American public to welcome such regulations in communities where the regulations are supported by a majority of the citizenry. And I hope that my community follows suit with those looking to crack down on the disgusting pants-way-below-the-underwear look (for both sexes).
Simon - September 20, 2007 at 7:37 pm
Cf. Barnes v. Glen Theatre.
Just A Dad - September 20, 2007 at 11:22 pm
Indeed, Barnes is a great reminder that the government always has had an interest in regulating public appearance: “Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.”
M. Simon - September 21, 2007 at 11:10 am
We solve this by getting the drooping trousers guys to have “fuck the draft” printed on their underwear. Politically and culturally expressive all at once.
You can’t fix this with laws.
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