Bikini Hut Loses Landmark First Amendment Appeal for Female Empowerment

This is Raquel Welch as Loana in the classic 1966 remake of One Million BC. I am including it purely for illustrative purposes to show what a barista wearing a bikini might look like.20th Century Fox

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Up in Everett, Washington, an establishment called Bikini Hut employs baristas who, um, wear bikinis. The city was unamused and passed an ordinance telling them to cover up. Naturally they sued, making the claim that their choice of apparel had nothing to do with sex:

Plaintiffs’ First Amendment free expression claim asserts that the baristas convey messages such as “female empowerment,” “confiden[ce],” and “fearless body acceptance” by wearing bikinis while working. In support of their motion for a preliminary injunction, plaintiffs submitted declarations from several baristas explaining their views that “a bikini is not a sexual message, [it’s] more a message of empowerment,” “we are empowered to be comfortable in our bodies,” “[t]he bikini sends the message that I am approachable,” “the message I send is freedom[,]” and “my employees expose messages through tattoos and scars.”

Perhaps unfortunately for Bikini Hut, on appeal to the Ninth Circuit they drew an all-woman panel of judges who knew bullshit when they heard it. Here is Judge Morgan Christen writing for a unanimous panel:

Context is everything when deciding whether others will likely understand an intended message conveyed through expressive conduct. To decide whether the public is likely to understand the baristas’ intended messages related to empowerment and confidence, we consider “the surrounding circumstances[.]”

….The baristas’ act of wearing pasties and g-strings in close proximity to paying customers creates a high likelihood that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from those described in plaintiffs’ declarations. The commercial setting and close proximity to the baristas’ customers makes the difference. Because plaintiffs have not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence will be understood by those who view them, we conclude that the mode of dress at issue in this case is not sufficiently communicative to merit First Amendment protection.

And there you have it.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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