Sonoko Tagami v. City of Chicago, Illinois

A City of Chicago ordinance prohibits women—but not men—from appearing in public if “any portion of the breast at or below the upper edge of the areola” is “exposed to public view or is not covered by an opaque covering.” Petitioner covered a portion of her breasts with opaque body paint as part of a group protest against the ordinance. A police officer ordered petitioner to cover her breasts and issued her a citation for violating the ordinance. A divided panel of the Seventh Circuit held that petitioner’s participation in the protest was not “expressive conduct” protected by the First Amendment and that “traditional moral norms” justified any infringement on speech as well as differential treatment of the sexes. The questions presented are:

1. Should the Court resolve the conflict between the circuits about whether conduct must convey a “particularized message” to be “expressive conduct” protected by the First Amendment?

2. Should the Court resolve the conflict between the circuits about whether morality interests can sustain a law from constitutional challenge after Lawrence v. Texas, 539 U.S. 558 (2003)?

3. Can the naked assertion that a law furthers “traditional moral norms and public order” satisfy the heightened standards of review for laws that infringe on speech and treat men and women differently? (I)