United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-3467 ___________________________ Free the Nipple - Springfield Residents Promoting Equality; Jessica Lawson; Amber Hutchinson lllllllllllllllllllllPlaintiffs - Appellants v. City of Springfield, Missouri lllllllllllllllllllllDefendant - Appellee ____________ Appeal from United States District Court for the Western District of Missouri - Springfield ____________ Submitted: February 13, 2019 Filed: May 6, 2019 [Published] ____________ Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges. ____________ PER CURIAM. Free the Nipple - Springfield Residents Promoting Equality and two of its members, Jessica Lawson and Amber Hutchison (collectively FTN), sued the City of Springfield, alleging its indecent exposure ordinance violates the Fourteenth Amendment’s Equal Protection Clause. The district court1 granted summary judgment to the City. Free the Nipple - Springfield Residents Promoting Equal. v. City of Springfield, 2017 WL 6815041 (W.D. Mo. Oct. 4, 2017). FTN appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. I. In August 2015, Lawson and Hutchison organized a protest to raise awareness about Springfield’s indecent exposure ordinance. The protestors were topless, except for opaque black tape covering their nipples. A month later, the City Council enacted a stricter indecent exposure ordinance. FTN sued the City to overturn it. In March 2016, the City repealed the September 2015 ordinance and replaced it with this ordinance: (a) No person shall engage in or commit any act of indecent exposure or conduct in place open to public view. (b) “Indecent exposure or conduct” shall include: (1) The exposure of the male or female genitals, pubic area, or the female breast with less than a fully opaque covering of any part of the areola and nipple, or the showing of the covered male genitals in a discernibly turgid state. (c) Exceptions. (1) This section shall not prohibit performances of adult entertainment in compliance with section 10-7. (2) This section shall not regulate nudity when the conduct of being nude cannot constitutionally be prohibited by this section 1 The Honorable Beth Phillips, Chief Judge, United States District Court for the Western District of Missouri. -2- because it is otherwise protected by the United States Constitution or Missouri Constitution. (3) This section shall not prohibit a mother from breast-feeding her child or expressing breast milk in any public or private location where the mother and child are otherwise authorized to be. FTN filed an amended complaint, asserting constitutional claims against both ordinances. The parties then agreed to a consent judgment on all counts relating to the September 2015 ordinance. The only remaining claim is FTN’s challenge to the March 2016 ordinance. It claims that the ordinance violates the Equal Protection Clause by treating men and women differently—prohibiting women, but not men, from exposing their areolas and nipples in public.2 FTN and the City moved for summary judgment on the equal protection challenge. The district court granted summary judgment to the City. Relying on this court’s decision in Ways v. City of Lincoln, 331 F.3d 596 (8th Cir. 2003), the district court concluded that ...
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