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Ninth Circuit Not Buying 'Bikini Baristas' Freedom of Expression Claims

By Christopher Coble, Esq. on July 10, 2019

Hillbilly Hotties. Java Juggs. Twin Peaks. Dreamgirls Espresso. If you haven't been following the "Bikini Barista" trend over the past decade, the names of Pacific Northwest establishments offering drive-thru coffee "with a view" may leave you wondering whether they are cafes or strip clubs. And city officials in Everett, Washington contend there was little difference, justifying a Dress Code Ordinance requiring employees, owners, and operators of Quick-Service facilities to cover "minimum body areas."

The owner and employees of one such stand fought the law, but the law won (for now). The U.S. Ninth Circuit Court of Appeals removed an injunction blocking the law from being enforced, ruling that the bikini baristas were unlikely to prevail on their First Amendment claims.

Is Near-Nudity Free Speech?

Interestingly, nude dancing and erotic performances are considered expressive conduct protected by the First Amendment. But the "nearly nude employees" didn't take that tack as part of their argument. Instead, they contended that their dress (or lack thereof) was a message of empowerment, an claim the Ninth Circuit judges found less than convincing. "Because plaintiffs have not demonstrated a 'great likelihood' that their intended messages related to empowerment and confidence will be understood by those who view them," the court wrote, "we conclude that the mode of dress at issue in this case is not sufficiently communicative to merit First Amendment protection." They continued:

We stress that plaintiffs deny that they engage in nude dancing and erotic performances, thereby disavowing the First Amendment protections available for that conduct. The outcome of this case turns on the plaintiffs' contention that the act of wearing almost no clothing while serving coffee in a retail establishment constitutes speech. Because wearing pasties and g-strings while working at Quick-Service Facilities is not "expressive conduct" within the meaning of the First Amendment, the Dress Code Ordinance does not burden protected expression.

What Are We Talking About?

Everett also updated its "Lewd Conduct" ordinance, which led to some interesting discussion amongst the judges regarding a lower district court decision:

The court explained that it was "uncertain as to the meaning of the compound term 'anal cleft' as used" in the amended definition, because "[t]he term 'bottom one-half of the anal cleft' is not well-defined or reasonably understandable[.]" We reach the opposite conclusion. Having examined the text adopted by the City, we are not persuaded that the public will be left to guess at the meaning of the term "anal cleft," particularly because the meanings of both "anal" and "cleft" are easily discerned through recourse to a common dictionary.

Great.

Now that we're all on the same page, there's just one place left for the bikini baristas to turn: The Supreme Court.

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