Wednesday, July 03, 2019

Edge v. City of Everett (9th Cir. - July 3, 2019)

The Ninth Circuit wants you to spend your Fourth of July holiday pondering the following issue:

What's your anal cleft?

Yes.  Seriously.

I'll let you read the opinion to figure out why this is important in the context presented.  But the panel unanimously concludes that people of ordinary intelligence understand what "anal cleft" means, and the statute at issue is accordingly not unconstitutionally vague.

As to the overall merits of the case, I admit to some sympathy with both sides.  There's no way I'm ever going to patronize a "bikini bistro" in which women in pasties and g-strings serve you drive-through coffee.  I'm also quite confident that there are indeed some secondary (deleterious) effects of these establishments; e.g., "how a customer in a truck approached the window and began 'groping' the barista in intimate areas . . . [while] the next customer in line . . . was clearly touching his genitals through his clothes as he was waiting his turn.”  Not something I especially want to see with "my 2 young daughters" in the car.

On the other hand, I think there is an element -- an element -- of expression involved here.  Various baristas testify that their choice of clothing in this regard is an expression of female empowerment, body self-acceptance, etc.  Now, to me, the commercial nature of the underlying transactions suggests that there might be other things, apart from speech, that are primarily motivating the conduct at issue. And, if you want, you can always wear your thongs and pasties off the clock, and the fact that you're probably not ordinarily parading around in this stuff when not being paid to do so suggests that the message-specific motivation for one's conduct is not extraordinarily strong.

Nonetheless, although there are alternatives, and conflicting motives, and all sorts of secondary deleterious effects, I nonetheless think that there is a message here.  And, unlike today's opinion, I think it's not one that people entirely fail to understand.  Sure, that meaning might be ignored (or overlooked) by some people.  But in the modern era, I'm not at all of the view that people fail to understand what body acceptance means -- and the various ways it's demonstrated.  (Moreover, I doubt this case would come out differently if the baristas at issue had signs that said "We're nearly naked to show our empowerment and acceptance of ourselves," thereby making the message crystal clear.)

I also wonder whether the Ninth Circuit isn't distorting precedent a bit; though, in this regard, it's hardly alone.  The panel bases its opinion on the holding that to be protected speech at all, the conduct at issue has to have a "great likelihood" of being understood by the public as the intended message.  But that's not actually the standard the Supreme Court set.  That quote comes from the Supreme Court's opinion in Spence, which held that displaying an upside down flag with a peace symbol attached was protected speech.  In so holding, the Court noted that it wouldn't be difficult for a "great majority of citizens" to understand what that means, and that indeed, the "likelihood was great" that that message would be understood.

But the Court never said that was the test.  It just said it was true in that case.  A fact that supports the expressive nature of the conduct but hardly seems essential.  To take but one example from my own (bygone) era, I doubt that most people will readily understand what I mean if I hold up a sign saying "Bong Hits For Jesus."  But that's undeniably protected speech (even if not, according to a close 5-4 opinion, necessarily protected in a school.)

Ditto for the other case in which this purported standard was articulated, Texas v. Johnson (the flag-burning case).  Again, the conduct there was held to be protected speech, and the meaning of burning a flag isn't totally hard to understand.  Yeah, the Supreme Court did there what the Ninth Circuit does here:  quotes Spence out of context, with inserted words to make it seem like the quote is a test, rather than a factual description.  A test that, in any event, was met there.

On the jurisprudential merits, it seems silly to hold that speech isn't speech at all unless there's a "high likelihood" that people will understand exactly what you mean.  I agree that the more they understand it, the more we might want to protect its exchange in the marketplace of ideas.  But the protection for saying "Trump is God Personified," for example, or conduct displaying such a message, doesn't seem to me to depend on whether people accurately perceive my intention as being pro-Trump, anti-Trump, or anti-religious.  It's a message.  Whether you get it or not hardly is itself dispositive as to whether I'm making a message.  Much less is it so dispositive that the standard is whether most people have a "high likelihood" of groking my intended meaning.

An example, in my view, of a factual statement in a prior opinion that was never intended to be a test and yet becoming one over time by people with a different agenda.

One final point about the opinion.  This case is about the right of women (who are the relevant actors here, I believe) to "wear[] almost no clothing," in the words of the opinion, at work.  It's interesting to note that the panel here consists entirely of women.

One might wonder if (some) men might address things differently.  And how it's a better world that women's permissible legal choices are no longer decided entirely by men.