Though some would say the new city ordinance regarding public indecency is a reaction to the Free the Nipple Rally, Springfield is still experiencing uncertainty whether the law will affect future protests downtown.
The ordinance requiring more complete coverage of women’s breasts and men’s and women’s buttocks passed by a 5-4 margin on September 14.
Springfield City Attorney Dan Wichmer says the ordinance should not affect free speech in a traditional public forum, citing major Supreme Court decisions. However, there are always exceptions.
“As with anything dealing with the right of people to assemble or how people are attired during a protest, it is very dependent on the location of the protest and what the message is. There is no way you can give a uniform rule as to what would and wouldn’t be permitted so it is a case-by-case issue. It is very fact dependent and location dependent.”
Wichmer maintains that the ability to prosecute is all based on the context of the protest; especially the location.
Wichmer did caution the council about enforceability in an August memo to avoid future lawsuits. In the context of the Free the Nipple campaign he would not be inclined to prosecute.
“I know we differ on our legal opinions, but that is what happens with attorneys.” Says Councilwoman Kristi Fullnecky, at the August 24th City Council meeting where the ordinance was first introduced.
Fullnecky, herself an attorney, expressed her assessment of the First Amendment applicability as obvious.
"I would argue that we do have a compelling interest. It is narrowly tailored. There is an alternate outlet to holding pickets and signs and doing protests on the square. The compelling interest argument is what you make it. If we decided we have a compelling interest we have every legal right to do that.”
She believes this legal opinion is mainstream, and communities do this all the time.
“The minute you throw rocks; the minute you disrupt traffic, you are breaking laws. The minute you take your clothes off, you are breaking the law.”
Fullnecky’s point is that free speech is not absolute.
“Our constitutional liberties are not absolute. In law school we learn about [the fact that] you can’t go into a crowded movie theatre and shout fire, and you can’t cause a disruption to society.”
The language in Springfield’s amended indecent exposure law is similar to that of Cape Girardeau’s. KSMU reached out to the city of Cape Girardeau for comment on the impact of its ordinance, but its attorney was not available.
The new ordinance is spurring civic action against the bill’s sponsor, Councilman Justin Burnett. The Facebook group was just renamed “Recall Justin Burnett from City Council” changing the word “remove” and has over 1,000 members.
The Facebook group was started by Jessica Lawson who also started the Free the Nipple Rally FacebookGroup. Although the issues are related, members are stressing that they don’t want it to be just about the rally or the revised indecent exposure ordinance.
A petition, which the group says will be ready soon, cites reasons being that Burnett has not adequately represented Zone 2 of Springfield. It would require signatures from at least 30 percent of voters in that zone based on the latest election before a recall vote could take place.
A counter-Facebook group has since sprung called “We Support Justin Burnett,” and has around 1,500 members.
Meanwhile, another protest developing Downtown Springfield is scheduled October 2nd from 8-9pm. The Slut Walk Campaign is an internationally known protest originating from Toronto, Canada in 2011.
The event is centered on ending rape culture and victim blaming, and participants often wear revealing clothes to show the cause of rape is not how a victim conducts his or herself.
Destiny Hodge, a Missouri State University student and one of the coordinators of the walk, believes the ordinance will not restrict what participants are wearing.
“I know the intent behind the law was to make us unable to even have the Slutwalk, but we‘re still within our rights so we’re still going to do it. And as far as just everyday there are stricter laws we have to follow but since we’re having an actual protest, we don’t have to abide by those laws during the protest.”
She adds that if anything the new Springfield ordinance has increased activity.
The group is communicating through the Facebook page “SpringfieldMOSlutWalk” and will meet on the square wearing anything they wish.
Dr. Kevin Pybas, the constitutional law professor for MSU’s political Science department, offers some clarification. He teaches his students the compelling interest test to which Fullnecky and Wichmer disagree.
“So, in this case, as I understand the disagreement among the parties, is whether the city ordinance can be applied categorically, always- that government always has a compelling interest wherever the nudity might take place,” says Pybas.
He says Wichmer does have a point when he states these cases are location and conduct specific. Case law on obscenity has historically been murky. It was as recent as 1950 that obscenity could be understood as something that could fall under expression. Although, things like the “Miller test” and “compelling interest test” give us guidance in understanding obscenity and First Amendment rights.
“When government passes a law that may limit freedom of speech then government has to justify the law by strict scrutiny which requires government to have an interest of the highest order, a compelling interest for the law. And then the law has to be written and drawn and applied in a way that it doesn’t interfere with liberty any more than is necessary to achieve the governmental objective,” explains Pybas.
Fullnecky also has a point, Pybas notes, that even in traditional public forums like the square restrictions can exist as long as they are deemed reasonable.
“Your First Amendment right is not violated if government says to you, you have to put a deposit down to guarantee that you’ll clean up the space. Your First Amendment right is not violated if government says to you, you can’t walk down Broadway at 5pm rush-hour. That’s a reasonable time place and manner restriction.”
Dr. Pybas says that in some ways, both parties’ arguments have truth to them, but believes they could be “talking past each other.” He says a resolution to the ordinance may only be realized in the outcome of a court challenge.
