Boxer Shorts and Buttocks: Subject To Strict Scrutiny?
As Justice Holmes famously wrote in his Lochner dissent, "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." But does it enact, say, Mr. Alan Flusser's Dressing the Man?
This doesn't affect us, since we usually don't put on pants before 5 p.m. But for those of you who do get dressed and leave home in the morning, check out this story:
Pine Lawn, a mostly black municipality outside St. Louis, is among a growing number of U.S. cities enacting laws that ban low-slung pants.Critics say the bans amount to government attacks on youthful fashion that some find offensive. And constitutional scholars say they may not be lawful.
"People have a right to express their identity through speech and action," said Neil Richards, a First Amendment expert at Washington University in St. Louis. "On the other hand, municipalities have a vague power to control the health, safety and welfare of citizens.
Discussion continues, after the jump.
The article starts out:
Call her old-fashioned, but Mary Gray doesn't want too much access to other people's underwear. "I'm from the old school," Gray said of the saggy pants ban she helped enact last month in Pine Lawn, Mo. "You got to leave something for the imagination."Besides, the 67-year-old alderwoman said, "I'm tired of looking at people's behinds. It just doesn't look nice."
Well, that depends on the butt in question, doesn't it? And if you don't like the behind, why not just look away? One has to wonder why a 67-year-old woman is "tired of looking at people's behinds."
Pine Lawn Mayor Sylvester Caldwell has said he began seriously contemplating the ban last summer, when developers discussed how the impoverished town could improve its image and boost its redevelopment potential.He said developers specifically mentioned the propensity of Pine Lawn's youths to let their pants ride low.
"I look at the future of a person and their ability to get a decent job," 72-year-old alderman James Brooks said. "It's going to be pretty difficult if you're not wearing your belt."
That depends too. If you're looking for employment as a nude dancer, it will be pretty difficult to get a decent job with your pants on.
An interesting tidbit about the origins of this style:
Saggy pants fashion is believed to have started in prisons, where inmates are issued ill-fitting jumpsuits but no belts to prevent hangings and beatings. The look was popularized in gangster rap videos.
What are the consequences of violating the ban?
Violators whose low-slung pants or low-rise jeans expose underwear or skin face up to a $100 fine, and their parents could be fined up to $500 fine or serve 90 days in jail.
Hmm... What about jeans that expose underwear due to holes? How does one define "low rise" or "low slung" pants? Could some of these bans be void for vagueness? The law school exam hypotheticals are endless.
Regardless of the constitutional questions, the bans are pretty silly, as a policy matter:
Two years ago, the Virginia Senate defeated a saggy pants ban passed by the House, but not before it became an international embarrassment, said David Hudson Jr., a legal scholar at the Nashville-based First Amendment Center.He finds it bizarre that cities spend so much time regulating clothing.
"I'm not sure what it really serves," Hudson said. "They should solve some real problems."
But some criticisms of the ban may also go too far:
Besides possibly violating the First Amendment, Hudson says saggy pants bans raise serious concerns under the 14th Amendment's due process clause guaranteeing life, liberty and property interests."This is an arbitrary regulation that infringes on individual liberty," he said. "Applying this outside of a public school environment is simply beyond the realm of proper government regulation."
One could argue that saggy pants bans are separated from bans on public nudity or indecent exposure, which raise no constitutional problem, by a somewhat slippery slope.
ATL readers: You're a fashion-forward crowd. And you're also well-informed about constitutional law. What do you think of baggy pants bans?
Saggy Pants Bans May Not Be Lawful [AP via ABC News]
(47) Comments
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WUSTL: first sex in the library, then sexist washing machine salesmen, now First Amendment pants scholars. Truly a bastion of academia.
If you want to look like a f***ing idiot I think that's your constitutional right
In fairness, Wash U's resident First Amendment pants scholar did clerk for Chief Justice Rehnquist.
Anyone want to talk about the racial implications of a law that bars low-riding pants?
I always assumed the style orignated with ill-fitting hand-me-downs. I'd like to know were the AP writer heard that tidbit.
Official count of number of comments before some douchebag snob put down Wash U. as a TTT: 4.
No way man, that's the style because they don't let you have belts in prison.
NY to Saggy Pants and bejeweled Grillz!!
So conservatives don’t like it when the Government regulates the environment, but they approve of the Government regulating how I wear my jeans. Makes sense.
The racial implications are obvious. Beyond that, this law is just bad policy. People will routinely break the law and it won't be enforced. In return for one or two youths keeping their pants up, this law will piss off a whole community. I don't sag my pants, but I'm offended by this nonsense.
What about my azz out pants?
You're a jerk, 4:49. Where above does it state that supporters of the proposed pants regulation are conservatives?
Is it only saggy pants that are offensive? What about tight pants that happen to be low-rise and display a fair amount of rear cleavage?
4:42 - Apparently, no. Unless you do.
my sister have number one cleavage all of almaty! its nice!!
They should ban jean shorts for men. So offensive.
4:45, several weeks ago, NPR did a piece on this issue. A councilman in Dallas was considering trying to pass an ordinance, and was dissauded by Constitutional scholars. A local rapper heard about the effort and joined him an a PR blitz. They talked about sagging having prison origins.
An alternative, and most likely constitutional, method would be to pass a resolution condemning low riding. The resolution could be passed in conjunction with an law directing local law enforcement officers to loudly and publicly inform individuals wearing their pants too low that the judgment of the community is that they look like idiots. The local government could direct the local law enforcement officers to carry bullhorns to more effectively shame offenders.
I NEVER SAID WUSTL WAS A TTT. Get over yourself.
I NEVER SAID WUSTL WAS A TTT. Get over yourself.
I'm having a hard time formulating an argument in favor of the ban. On what grounds does the City claim it has authority to pass this law? Health & welfare? This just seems too weak to pass any constitutional muster.
Any fine scholars out there want to take a shot at actually justifying that socio-economically discriminatory law? And if not, anybody got a link to Pine Lawn's justification, besides the "offensive" nature of the pants and trying to bring up property values in/gentrify the area?
Low rider... low rider... da da da da da da da da da da... low rider... low rider....
This is clearly unconstitutional. This ban would also cover hot chicks with low rider jeans that exposed their thongs. Making this illegal amounts to cruel and unusual punishment as well as the tort of intentional infliction of emotional distress.
To 5:25: "Truly a bastion of academia."
You're a douchebag. Get used to it.
esides possibly violating the First Amendment, Hudson says saggy pants bans raise serious concerns under the 14th Amendment's due process clause guaranteeing life, liberty and property interests.
"This is an arbitrary regulation that infringes on individual liberty," he said. "Applying this outside of a public school environment is simply beyond the realm of proper government regulation."
Yes its really going too far to defend the 1st amendment !
FROM HENCEFORTH EVERYONE MUST DRESS LIKE A BORING WHITE PERSON!
Unconstitutional for one main reason. To enforce it, they would have to apply the ban equally to all offenders. This would lead to the shut-down of the entire plumbing industry. Not only would this devastate homeowners who needed new toilets and hot water heaters, but it would unfairly restrain trade, in a very literal sense.
How dare anyone question young black males -- they are obviously doing so much good for themselves and this country on their current track.
Thank god we teach Ebonics in schools now... it could have been lost forever. And we sure showed that bill cosby!
PS: I like to sniff other people's farts. Also, I made my own version of 2 Girls 1 Cup. It's called 1 Guy 1 Cup and a Football Team.
you would think someone could ban 2 girls, one cup long before they ban saggy pants.
Note to Dec. 3, 5:37: The story is NOT advocating that we should not defend the First Amendment.
Where they are saying that the scholar goes too far is to say that this falls under the 14th Amendment Due Process rights. Where there may be protection for "expressive conduct" under the first amendment I seriously doubt that wearing you pants low is a "fundamental interest" worthy of 14th Amendment heightened scrutiny
On that Note: Why does this even have to implicate a Protected Right. This law sucks so bad that it shouldn't even pass "rational-basis."
Well, if it puts more black men in jail, it's probably a good idea. They should also ban do-rags, afros, cornrows and skin darker than a paper bag.
I hate these baggy pants with a passion, but they're just another fad. Why not just wait another five years until they fade out of style?
Does this city really want to have a "no baggy pants" law on the books for 100 years? That will just end up in some compendium of stupid laws from previous generations.
The best way to end this will be for all of us uncool kids (and grownups) to start wearing baggy pants. They'll go out of style really quickly then.
I think Lat's idea was the best: void for vagueness. The trouble with this ban is, under the conlaw caselaw, there's no other obvious problem with it. It doesn't implicate a fundamental right, as someone pointed out: no strict scrutiny. There is a rational basis: making the town look nicer, viz, less gang-infested, should pass that test. The equal protection argument is dumb: you have to show that the legislature was explicitly motivated by racial animus, which is going to be especially hard to do if the municipality is majority-black, and in any event lots of dumbasses sag their pants (plus the hot girls in thongs, as one commenter noted, which many might regard as a tragic side-effect of this whole thing). Hard to argue that it's expressive under the First Amendment, particularly after that Bong Hits for Jesus case.
So I vote for Void for Vagueness (sounds like a band). I mean, how do you define "underwear"? Is it "underwear" if you wear shorts and nothing underneath? Certain thinness of the material? Keep in mind that it would violate EP to discriminate b/w men and women, so if they get too specific they'll end up banning a lot of highly desirable conduct (like girls with thin pants). If they were forced to be more specific, and in effect more broad, then that actually might fail the rational basis test. That's the constitutional catch-22, after all, and it's a good thing, since this law is incredibly stupid (or "uncommonly silly").
Lat- how about a jeans/thong pic instead of the stupidity you have up there now?
This did start in prison. The term is 'saggin' (spell it backwards.) This came about because of the no belt rule and it gives 'street cred'
This law is safe if it reaches the US Supreme Court. With W's right wing court, there is no longer this thing you refer to as the "constitution." That is now an ancient history piece similar to the Napoleonic Code.
I'm having a hard time formulating an argument in favor of the ban. On what grounds does the City claim it has authority to pass this law? Health & welfare? This just seems too weak to pass any constitutional muster.
Posted by: Anonymous | December 3, 2007 05:29 PM
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The analysis is backwards. States, and their subdivisions, are plenary governments, not limited governments like the federal government is. The question is why DON'T they have the right to pass this law. Only then should you discuss any federal constitutional right being applied to the states under the 14th amendment.
Personally, I have a hard time seeing how letting your ass hang out is "speech." Unless you fart, cause then someone can say "Answer the phone, some ass keeps calling!"
I weep for the future of the legal profession... our only hope is that the above postings were written by 1) non-lawyers, 2) senile retired lawyers, 3) jokes.
LAST
I really love people who wear sagging pants. I know if they try to mug me, I'll have an easy time running away.
Blatantly unconstitutional - and typically aimed at young people, especially young minorities.
As if the town's economy is going to improve from this - it will just be known as the backward shit-hole that tried to violate the constituion.
How about we ban people over 60 from showing any skin at all? Some people may find wrinkles offensive!
LAST!
9:19- Nice argument, weepy smart ass. So what exactly is your gripe with my post: that's the law's unconstitutionally vague, or that I think the other stupid arguments (especially the it-targets-young-and-minorities) are stupid?
Personally, I would like to see the government get out of the whole dress code altogether. This whole notion of deciding what constitutes the butt, the portion of the breast that can and can not be seen, what is underwear, and so on is just nuts!
As long as someone is not posing a threat or acting in a threatening way they should be left alone. MHO.