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Free The Nipple - Springfield Residents Promoting Equality v. City of Springfield

United States Court of Appeals, Eighth Circuit

May 6, 2019

Free the Nipple - Springfield Residents Promoting Equality; Jessica Lawson; Amber Hutchinson Plaintiffs - Appellants
v.
City of Springfield, Missouri Defendant-Appellee

          Submitted: February 13, 2019

          Appeal from United States District Court for the Western District of Missouri - Springfield

          Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

          PER CURIAM.

         Free the Nipple - Springfield Residents Promoting Equality and two of its members, Jessica Lawson and Amber Hutchison (collectively FTN), sued the City of Springfield, alleging its indecent exposure ordinance violates the Fourteenth Amendment's Equal Protection Clause. The district court[1] granted summary judgment to the City. Free the Nipple - Springfield Residents Promoting Equal. v. City of Springfield, 2017 WL 6815041 (W.D. Mo. Oct. 4, 2017). FTN appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.

         In August 2015, Lawson and Hutchison organized a protest to raise awareness about Springfield's indecent exposure ordinance. The protestors were topless, except for opaque black tape covering their nipples. A month later, the City Council enacted a stricter indecent exposure ordinance. FTN sued the City to overturn it. In March 2016, the City repealed the September 2015 ordinance and replaced it with this ordinance:

(a) No person shall engage in or commit any act of indecent exposure or conduct in place open to public view.
(b) "Indecent exposure or conduct" shall include:
(1) The exposure of the male or female genitals, pubic area, or the female breast with less than a fully opaque covering of any part of the areola and nipple, or the showing of the covered male genitals in a discernibly turgid state.
(c) Exceptions.
(1) This section shall not prohibit performances of adult entertainment in compliance with section 10-7.
(2) This section shall not regulate nudity when the conduct of being nude cannot constitutionally be prohibited by this section because it is otherwise protected by the United States Constitution or Missouri Constitution.
(3) This section shall not prohibit a mother from breast-feeding her child or expressing breast milk in any public or private location where the mother and ...

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