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

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.

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.

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We've never been very good at being conservative.

And usually, that serves us well in doing the ambitious, hard-hitting journalism that you turn to Mother Jones for. But it also means we can't afford to come up short when it comes to scratching together the funds it takes to keep our team firing on all cylinders, and the truth is, we finished our budgeting cycle on June 30 about $100,000 short of our online goal.

This is no time to come up short. It's time to fight like hell, as our namesake would tell us to do, for a democracy where minority rule cannot impose an extreme agenda, where facts matter, and where accountability has a chance at the polls and in the press. If you value our reporting and you can right now, please help us dig out of the $100,000 hole we're starting our new budgeting cycle in with an always-needed and always-appreciated donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate