Banning Bottoms

September 9, 2007 | | 1 Comment

Belt sales in Louisiana could soon get a boost. The city counsels of Shreveport and Alexandria recently voted to prohibit individuals from wearing their pants below the waist, joining four other Louisiana cities in banning baggy pants. Depending on the city, violators are subject to fines of up to $200 and may even be required to perform community service. But Louisiana is not alone—Atlanta is considering a similar proposal which would actually make wearing baggy pants a public indecency offense and Dallas is contemplating making droopy drawers part of a statute prohibiting lewdness. The city councilmen and women cite various reasons for the bans, including embarrassment to the city (Dallas), being “tired of looking at behinds” (Shreveport), or most simply, that wearing one’s pants below the waist just “doesn’t make sense” (Atlanta).

Although these proposals appear to enjoy plenty of support, not everyone is so enthusiastic. In 2005, the Virginia Assembly defeated a bill proposed by Delegate Algie T. Howell which would have imposed a $50 fine on anyone who “intentionally displays his below-waist undergarments…in a lewd or indecent manner.” The Virginia House of Delegates actually approved the bill, but the Senate unanimously rejected it, responding to fears that the ban would be unconstitutional. More recently, the city council in Stratford, Connecticut rejected a baggy-pants ban out of concern that it would unfairly target minorities, and the ACLU has similarly intervened in Atlanta, arguing that prohibiting baggy pants would amount to racial profiling of young black men. I confess that I do not know enough about the age and race breakdown of those who sport baggy pants to weigh in on this argument, but regardless of the age or race (or sex) of the derriere-barer, I believe such a ban violates the Constitution in another way: by violating freedom of speech and expression.

There are plenty of fashion trends which I am personally not crazy about—the all-black dress favored by “goths” for example, or Croc shoes, or jeans worn under skirts. But I do not believe that these fashions should be banned because, among other reasons (such as sheer absurdity), I recognize that the individuals who choose to wear these types of clothing are engaging in the free expression of their attitudes, personality, social connections, or hobbies, as protected by the First Amendment. The First Amendment freedom of speech has long been recognized to encompass more than just actual verbalizations, but also extends to the right to generally communicate ideas, regardless of the mode of communication. Surely, communicating one’s idea through low-slung pants is as protected an expression as the right to wear an ankle-length black trenchcoat.

There is an argument to be made that ankle-length black trenchcoats and Crocs are not really the same as baggy pants. Few would argue that the trenchcoat is offensive or lewd, and probably no one would make that claim about the Crocs. But questions of “lewdness” are invariably difficult to pin down, and if we are going to protect the public from the lewd displays of bottoms, should city councils then also ban low-cut spaghetti-strap tank tops? It would be a difficult (or at least, uncomfortable) argument to make that bottoms are indecent but bosoms are not. On the other hand, it is quite easy to make the argument that the clothes one chooses to wear and the way he chooses to wear them are fundamentally protected as free expression.

To be clear, I do recognize that there may be situations in which restricting the free expression of clothing choices might be appropriate; for example, as part of a school’s dress code. Whether you support or oppose restricted dress in schools, it is now fairly well established that students do not have complete freedom to express themselves through their clothing. The 2007 case Zamecnic ex re. Zamecnic v. Indian Prairie School District Board of Education (Slip Copy 2007 WL 1141597) made that plain, and there the court relied on Bethel School District No. 403 v. Fraser (478 U.S. 675) by stating that “schools may restrict student speech that is vulgar, lewd, indecent, or plainly offensive.” However, these students, though restricted in their freedom of expression at school, are presumably free to wear whatever they want once they get home.

Just not if Shreveport has anything to say about it.

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1 Comment so far

  1. Neal on September 10, 2007 12:12 am

    The distinction I would argue that gives these bans the best chance of success would seem to be that the baggy pants expose undergarments to plaint view (a different approach to the lewdness angle). Because while the First Amendment would protect trench coats, all-black goth dress, and any other outer clothing trend, I don’t think it actually extends to undergarments. Thus, women could not walk around without clothes on, or with just bras and underwear on, men could not do so with just underwear.

    Should the First Amendment protect nudity or just wearing undergarments? That’s a tougher question, but courts would likely say no.

    Regarding racial profiling, I know I’ve seen this much more as a trend in the African American community, but honestly, it shouldn’t be a debate motivated by race, even though the group hardest hit by the ban would be a racial group. The look, to me, is rather embarrassing, but if you’re not going to let all groups expose or wear only undergarments, then you shouldn’t protect just one group in doing so because it’s a cultural trend.

    Also, we’ve yet to actually hear the “wearing baggy pants or exposing underwear is part of my identity” line, though the ACLU or other civil rights leaders may try to argue this in order to make the fashion trend more in line with a First Amendment claim. I just don’t see any court buying it.

    It’s also important to note that these bans aren’t motivated just by a dislike of baggy pants, but rather, it seems that only baggy pants which expose underwear (though as a consequence of the generic language of the law, the ban would cover all. Perhaps a First Amendment arguement on the law being overly broad would be more effective)

    On the related question of whether a state or city should actually be wasting the time on something like this when there are significantly bigger problems on the radar (especially in Louisiana), well, I can only say that this is the South for you.

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