2017—In Edge v. Everett, federal district judge Marsha J. Pechman issues a preliminary injunction that bars the city of Everett, Washington, from enforcing its ordinances against so-called “bikini barista” stands. Everett had enacted these ordinances in response to a history of lewd conduct by baristas wearing pasties and G-strings. The ordinances require that employees of quick-service facilities wear clothing that covers defined “minimum body areas” and expand the definition of “lewd act” to encompass public display of specified parts of the body.
Judge Pechman rules that the challengers are likely to succeed on their claims that the ordinances are unconstitutionally vague (the “term ‘bottom one-half of the anal cleft’ is not well-defined or reasonably understandable”) and violate the First Amendment right to free expression.
On appeal, a Ninth Circuit panel will unanimously reverse Pechman’s ruling. In her opinion for the panel, Judge Morgan Christen (an Obama appointee) will conclude that the ordinance adequately delineates what body areas cannot be exposed or displayed in public. As for the baristas’ claim that they intend to convey by their provocative attire messages related to empowerment and confidence, Judge Christen observes that paying customers are unlikely to discern those messages and that the mode of dress is therefore not sufficiently communicative to merit First Amendment protection.