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Ninth Circuit Doesn't Buy Nearly Naked Barista 'Empowerment' Argument

Apparently being naked and serving coffee is frowned upon in this establishment.

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Last week, right before the Fourth of July in fact, the Ninth Circuit struck a blow against freedom. It upheld two Everett, Washington, city ordinances that effectively required baristas who serve coffee in bikinis to put on more clothes. When reached for comment, Randy Marsh had this to say:

I actually agree with the Ninth Circuit’s outcome here. Not on the law — I think the First Amendment should protect pretty much everybody’s right to wear, or not wear, whatever they want. If I’ve gotta deal with people wearing MAGA hats and driving around with Confederate flags on their vehicles, then I can certainly deal with somebody serving coffee in a g-string and pasties. But I agree with the Ninth Circuit’s outcome just as a “screw you” to the arguments made on behalf of “Hillbilly Hotties,” a bikini barista chain in the upper Northwest. From the ABA Journal:

The plaintiffs had claimed that their minimal clothing had conveyed messages such as female empowerment, confidence and fearless acceptance of their bodies.

Come on now. Serving coffee while nearly nude is not about fearlessness, it’s about jiggling for tips. It’s an insulting argument that minimizes the things that actually need to be done to further advance female empowerment, and I’m glad it got spiked by the Ninth Circuit.

On the Constitutional Law side, though… I want to say that the Ninth is wrong here. From the L.A. Times:

After receiving nearly 40 complaints, Everett, located north of Seattle, passed the ordinances, which apply to coffee stands, fast-food restaurants, delis, food trucks, coffee shops and drive-through businesses.

The baristas who challenged the laws argued they were so vague that they would be difficult to enforce.

Disagreeing, the 9th Circuit wrote: “All an officer must determine is whether the upper body (specifically, the breast/pectorals, stomach, back below the shoulder blades) and lower body (the buttocks, top three inches of legs below the buttocks, pubic area and genitals) are covered.”

“A person of ordinary intelligence reading the ordinance in its entirety will be adequately informed about what body areas cannot be exposed or displayed,” Judge Morgan Christen, an Obama appointee, wrote for the panel.

The court also found that wearing G-strings and pasties did not amount to conduct protected by the 1st Amendment in the context of retail establishments whose employees are in close contact with the public.

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I can think of a hundred retail situations in which various states of undress would be fine… they’re called “summer.” I can also think of a number of retail stores which might indeed value informal attire while in close contact with the public. Shirtless models at Abercrombie & Fitch would, arguably, be granted First Amendment protection. I bet shirtless cabana boys wouldn’t be a problem. In fact, I imagine that if “Hillbilly Hotties” had just run out shirtless men to serve the coffee, there wouldn’t have been 40 prude-as-hell local complaints to inspire brand new city ordinances in the first place.

But, this is one of the many reasons I’m not a federal judge. My opinion in this case would have been: “This is dumb, but fine. Next.”

Bikini-clad baristas must cover up, federal appeals court says [Los Angeles Times]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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