April 23, 2004

Now You Need a Tattoo

by PG

From the Overenthusiastic Rookie Legislator file:

People who wear low-slung pants that expose skin or "intimate clothing" would face a fine of up to $500 and possible jail time under a bill filed by a Jefferson Parish lawmaker.
While I've advocated voluntary self-regulation in the wearing of low-rise pants, an actual law, with or without penalties, is obviously silly. On the other hand, I don't see any constitutional barrier to it. The head of the Louisiana ACLU "said the bill probably does not meet the U.S. Supreme Court's standard for the prohibition of obscene behavior under the First Amendment," but why would the First Amendment come into play at all?

Unless low-rise pants are inherently expressive, or a person is using them in an expressive way, they do not clearly have First Amendment protection. They lack even the content of obscene materials; they are simply a style of clothing. Indeed, whether a particular pair of pants qualifies as "low-rise" depends to some degree on the wearer's torso proportions.

Until all the low-rise pants wearers get something expressed on their exposed skin or underwear, thus making the pants necessary to their speech (unless the legislature wants people to go around with no pants at all), the bill should have no constitutional problems.

April 23, 2004 12:52 PM | TrackBack

To play the contrarian advocate, I don't see how low-rise pants could be seen as anything other than expression. To the extent that low-rise pants are differentiated from pants, I can't think of any possible reason to wear them other than to express an affinity for a lifestyle and a culture.

(Note: I am talking about real expression, not legal expression. The two are almost certainly different.)

Posted by: Craig at April 23, 2004 06:20 PM

:-) I appreciate the contrarian advocacy, but:

I own low-rise pants. Exactly what is this lifestyle and culture that I am affirming? These pants are endemic. I see women of all ages, races, educational levels, incomes, regions, religions (except faiths that are very strict about body exposure) and political persuasions in low-riders. Heck, short hair on women makes more of a statement than low-riders do.

The First Amendment cases I have encountered usually include some statement of what the citizen is trying to express, whether it be "fuck the government" or "stop the war." If you're consuming pornography, that falls more under privacy; not much First Amendment protection for showing skin flicks in the public square. Obviously these people are appearing in public with their low-slung pants, so they don't have a privacy argument.
If I go to Louisiana, get arrested and try to fight on the First Amendment, I will have no idea what to declare as my "statement." That I shop at Old Navy?

Posted by: PG at April 23, 2004 07:34 PM

This is an interesting story. I'm not even sure what to make of it.

It certainly re-defines the phrase, "the fashion police."

And it just feels wrong in — well, deep down in my gut — in areas that I keep well-covered by not wearing low-rise pants myself. ;)

Posted by: Rick Horowitz at April 23, 2004 08:50 PM

Plumbers have been wearing low-rise pants well before the young crowd of today adopted the style. Plumbers are merely expressing First Amendment rights by "telling" viewers: "That's a dirty crack."

Posted by: Shag from Brookline at April 23, 2004 09:15 PM

When in doubt, and there is no state constitutional barrier, argue the Ninth Amendment! Hey, what right does the state have to restrain liberty for no reason? (Been reading too much of Randy Barnett's book...)

Posted by: Matto Ichiban at April 24, 2004 12:24 AM

This might be the sort of law that would fail rational basis review under Equal Protection. Or it might convince a court to tweak the expressive conduct doctrine under the First Amendment--could argue that the "particularized message" requirement need not be met when the law serves no legitimate state purpose whatsoever. Wearing clothes--though not explicity communication--is self-expression of some kind, which arguably deserves protection of some kind, even if less protection. Imagine a law banning hair gel. There simply has to be some constitutional argument courts would accept.

Posted by: Nick Morgan at April 24, 2004 03:35 AM

It's exam time. Okay, assert the ninth amendment, but only a fifth will soothe the addled mind - but wait until exams are over.

Posted by: Shag from Brookline at April 24, 2004 11:48 AM

But it's not a restraint on liberty for "no reason." Some people in Louisiana are offended by the sight of underwear, or worse yet, skin that ought to be covered by underwear. The legislator who proposed the bill claims, "The community's outraged."
We seem to consider it rational to be offended by certain sights, as states already have laws banning public nudity, indecent exposure, etc. Clearly whatever rights the people retain do not include the right to appear in public dressed however we choose.

As for EP, who is being treated inequally? Initially, due to the rhetoric of State Rep. Derrick Shepherd ("if parents can't do their job, if parents can't regulate what their children wear, then there should be a law"), I thought this law was being applied only to minors. But apparently it will be applied to everyone: children, adults, blacks, whites, men, women, gays, straights. Just as low-riders are so fashionable that women of nearly every kind wear them (and let's face it, some women who probably shouldn't, on grounds of aesthetic seemliness), the ban on low-riders wil be universal.

As for self-expression, I still want to know what I'm expressing, even if it's not a particularized message. If I remember correctly, I was induced to buy my first pair of low-riders by a combination of peer pressure, the difficulty of finding any other style and the realization that it really did look better than the regular preppie fit from the '80s. This is self-expression? Even the labels on the pants say more than the style do; they say, "Yuppie."

Posted by: PG at April 24, 2004 03:59 PM

PG ... What?!?!?!?!?

How could you not see this law as extremely problematic? If you look at any dress code cases, the only reason even they get through is because of the "material disruption" the clothes cause in school (from Tinker).

Few things can be more expressive than the choices we make about our attire (who has not made some petty -- and usually accurate -- assumptions about a person based on their clothing), and it would clearly be a problem to ban a type of clothing outside the confines of a school.

You answer your own question with two of your three reasons for purchasing the pants. Giving in to "peer pressure" has an obvious expressive element -- "I'm like them." And buying based on your subjective opinion that "it really did look better than the regular preppie fit from the '80s" -- you ended your own argument with that exceptionally expressive statement.

Posted by: Chris Geidner at April 24, 2004 10:10 PM


I addressed Tinker in my first comment, when I noted that "stop the war" was an actual expression. Order is an important consideration not only in schools, but also in public. We have dress codes outside schools; women cannot be in public without covering their breasts and genitals. (The different rules about toplessness may be sensibly challenged on an equal protection basis, as men can go topless but women cannot.)

Strictly speaking, it is not merely a style that is being banned, but a style that is inherently excessively revealing and thus offensive. One may still wear low-rise pants, as long as they do not expose too much.

Going without clothing on the bottom half of one's body is also a style, but many states ban it with no First Amendment problems, despite the statement one may be attempting to make.

As for my motivations for buying low-rise pants, they are hardly something I wish to express. Merely because I have a motivation, and someone can guess it accurately from my clothing, does not mean that I want to express it. Today my clothes imply "Lazy slob," but I wish they didn't.

Posted by: PG at April 25, 2004 02:08 PM

Oh come on you wooly liberals, this isn't about speech or expression in any way shape or form. To even invoke Tinker is to shame the message that those kids were trying to convey by comparing them to Suzy Here's-My-Perhaps-Overly-Ample-Thonged-Butt and Johnny Backwards-Hat-Can't-Figure-Out-Where-My-Waist-Is.

Even Brennan or Skelly Wright wouldn't even consider this fertile grounds for any sort of constitutional challenge.

Failing rational basis?!?! FAILING RATIONAL BASIS!?!!

In a world where we can water down the compelling governmental interest test of strict scrutiny to include 'diversity of student body,
nothing fails rational basis.

Please don't use the words 'fail' and 'rational basis' in the same sentence on an exam unless there is a negation tucked somewhere in there, too.

Posted by: Brian at April 25, 2004 06:58 PM

We have dress codes outside schools; women cannot be in public without covering their breasts and genitals. (The different rules about toplessness may be sensibly challenged on an equal protection basis, as men can go topless but women cannot.)

Reminds me of when someone in my federal courts class made an argument to my professor and she started to respond: "I think you make a goo.. er.. an argument."

Sensibly challenged? Just challenged. Litigation 101: When you're filing a lawsuit, put in every available grounds for relief that isn't barred by Rule 11 and in Con Law that's pretty much everything in the Bill of Rights including the afformentioned silly putty of the 9th Amendment and always always always Equal Protection. As Holmes once said, it's "the last resort of constitutional arguments."

I guess people are trying to analogize this to the First Amendment nude dancing cases trying to back engineer poor fashion taste or indecent exposure into expression. Problem is: there be kiddies about on the streets and not in the strip clubs.

Posted by: Brian at April 25, 2004 07:07 PM

I would like to see something like this here in Oregon. I agree with the idea that people shouldn't go around parading their underwear and butt-cracks, but a $500 fine, or even jail time? I think that falls into the category of harsh (or un-necessary??) punishment. Why do that when there are other, more serious crimes that need to be taken care of? I'm not saying that these people need to go unpunished, but that is ridiculous. I think that just a small fine would do. People need to be aware that no one cares what kind or color your underwear are. They are called "unmentionables" for a reason. And for the guys who always have their pants around their knees, you have the belt on, use it right...

Posted by: Jen at April 26, 2004 08:16 PM

case, via howard, about expressive jockeys.
when did the people of louisiana cede to the government the power to decide what a citizen will wear? there are significant state con issues
see e.g. louisiana v napoleon moses that come into play before federal questions need be reached.

Posted by: arbitraryaardvark at April 28, 2004 10:02 AM
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