Jovanna Edge v. City of Everett

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOVANNA EDGE, an individual; LEAH No. 17-36038
HUMPHREY, an individual; LIBERTY
ZISKA, an individual; AMELIA D.C. No.
POWELL, an individual; NATALIE 2:17-cv-01361-
BJERKE, an individual; MATTESON MJP
HERNANDEZ, an individual,
Plaintiffs-Appellees,
OPINION
v.
CITY OF EVERETT, a Washington
municipal corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted February 4, 2019
Seattle, Washington
Filed July 3, 2019
Before: Sandra S. Ikuta and Morgan Christen, Circuit
Judges, and Jennifer Choe-Groves,* Judge.
Opinion by Judge Christen
*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 EDGE V. CITY OF EVERETT
SUMMARY**
Constitutional Law / Preliminary Injunction
The panel vacated the district court’s preliminary
injunction against enforcement of the City of Everett,
Washington’s Dress Code Ordinance—requiring that the
dress of employees, owners, and operators of Quick-Service
facilities cover “minimum body areas”—and the amendments
to the Lewd Conduct Ordinances.
Plaintiffs are owners and employees of a bikini barista
stand in Everett, Washington.
The panel held that plaintiffs did not show a likelihood of
success on the merits of their two Fourteenth Amendment
void-for-vagueness challenges, nor on their First Amendment
free expression claim.
Concerning the Lewd Conduct Ordinances, which
expanded the definition of “lewd act” and also created the
misdemeanor offense of Facilitating Lewd Conduct, the panel
held that the activity the Lewd Contact Amendments
prohibited was reasonably ascertainable to a person of
ordinary intelligence. The panel also held that the
Amendments were not amenable to unchecked law
enforcement discretion. The panel concluded that the district
court abused its discretion by holding that the plaintiffs were
likely to succeed on the merits of their void-for-vagueness
challenge to the Amendments.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EDGE V. CITY OF EVERETT 3
Concerning enjoinment of the enforcement of the Dress
Code Ordinance, the panel held that the vagueness principles
governing the panel’s analysis of the Lewd Conduct
Amendments applied with equal force to the Dress Code
Ordinance. The panel concluded that the vagueness doctrine
did not warrant an injunction prohibiting enforcement of the
Dress Code Ordinance. As to plaintiffs’ First Amendment
contention that the act of wearing almost no clothing while
serving coffee in a retail establishment constituted speech, the
panel held that plaintiffs had not demonstrated a “great
likelihood” that their intended messages related to
empowerment and confidence would be understood by those
who view them. The panel concluded that the mode of dress
at issue in this case was not sufficiently communicative to
merit First Amendment protection. The panel also held that
the district court’s application of intermediate scrutiny under
the “secondary effects” line of authority was inapposite, and
the City need only demonstrate that the Dress Code
Ordinance promoted a substantial government interest that
would be achieved less effectively absent the regulation.
Because the district court did not analyze the ordinance under
this framework, the panel vacated the preliminary injunction
and remanded for further proceedings.
COUNSEL
Ramsey Everett Ramerman (argued), City of Everett,
Everett, Washington; Sarah C. Johnson and Matthew J.
Segal, Pacifica Law Group LLP, Seattle, Washington; for
Defendant-Appellant.
4 EDGE V. CITY OF EVERETT
Melinda W. Ebelhar (argued) and Gerald M. Serlin,
Benedon & Serlin LLP, Woodland Hills, California, for
Plaintiffs-Appellees.
OPINION
CHRISTEN, Circuit Judge:
“Bikini barista” stands are drive-through businesses
where scantily clad employees sell coffee and other non-
alcoholic beverages. In Everett, Washington, a police
investigation confirmed complaints that some baristas were
engaging in lewd conduct at these establishments, that some
baristas had been victimized by patrons, and that other crimes
were associated with the stands. The City responded by
adopting Everett Municipal Code (EMC) § 5.132.010–060
(the Dress Code Ordinance) requiring that the dress of
employees, owners, and operators of Quick-Service Facilities
cover “minimum body areas.” Separately, the City also
broadened its lewd conduct misdemeanor by expanding the
Everett Municipal Code’s definition of “lewd act” to include
the public display of specific parts of the body. EMC
§ 10.24.010. The City also created a new misdemeanor
called Facilitating Lewd Conduct for those who permit, cause
or encourage lewd conduct. EMC § 10.24.020.
A stand owner and several baristas sued the City pursuant
to 42 U.S.C. § 1983, contending that the Dress Code
Ordinance and the amendments to the Lewd Conduct
Ordinances violate their First and Fourteenth Amendment
rights. The district court granted plaintiffs’ motion for a
preliminary injunction and enjoined enforcement of these
provisions. The City appeals. We have jurisdiction over the
EDGE V. CITY OF EVERETT 5
City’s interlocutory appeal pursuant to 28 U.S.C. § 1292.
Because we conclude that plaintiffs did not show a likelihood
of success on the merits of their two Fourteenth Amendment
void-for-vagueness challenges, nor on their First Amendment
free expression claim, we vacate the district court’s
preliminary injunction and remand this case for further
proceedings.
I. Factual Background
Bikini barista stands have operated in and around Everett
since at least 2009. The baristas working at these stands wear
what they call “bikinis,” but the City describes them as
“nearly nude employees,” and the district court made clear
that their attire is significantly more revealing than a typical
bikini. The district court’s finding that at least some of the
baristas wear little more than pasties and g-strings is well-
supported by the record.
Beginning in summer 2009, the Everett Police
Department (EPD) began fielding numerous citizen
complaints related to bikini barista stands. One complainant
asserted that she observed a female barista wearing “pasties”
and “a thong and what appeared to be garter belts sitting
perched in the window with her feet on the ledge[.]” The
complainant went on to describe how a customer in a truck
approached the window and began “groping” the barista in
intimate areas. According to the complainant, “the next
customer in line . . . was clearly touching his genitals through
his clothes as he was waiting his turn.” Stuck in traffic, the
complainant wrote that she “had to sit there w/ my 2 young
daughters and was so disgusted[.]”
6 EDGE V. CITY OF EVERETT
After receiving upwards of forty complaints, EPD
launched an undercover investigation and documented that
some baristas at this type of stand were openly violating the
existing criminal code prohibiting various forms of lewd
conduct. At the time, EMC § 10.24.010 defined lewd
conduct to include exposure or display of one’s genitals, anus
or any portion of the areola or nipple of the female breast, but
EPD’s investigation revealed that some of the bikini baristas
removed their costumes entirely. EPD also discovered that
some baristas were not paid hourly wages and worked for tips
only, resulting in pressure to engage in lewd acts, and that
other baristas were paid wages but still performed lewd acts
in exchange for large tips. Everett undercover police officers
took a series of graphic photos documenting the extremely
revealing nature of the baristas’ garb and instances in which
baristas removed their tops and bottoms altogether. Officers
also documented a wide variety of customer-barista physical
contact. At least one bikini stand owner was convicted of
sexually exploiting a minor after he was caught employing a
sixteen-year old at one of the bikini stands. See State v.
Wheeler, No. 72660-9-I, 2016 WL 1306132, at *1–3 (Wash.
Ct. App. 2016). Another stand turned out to be a front for a
prostitution ring, and some of the baristas, who worked in
isolated locations late at night, reported being victims of
sexual violence. A Snohomish County Sheriff’s Deputy was
convicted of a criminal offense after helping an owner evade
the City’s undercover officers in exchange for sexual favors.
Enforcing the City’s existing lewd conduct ordinance
required extensive use of undercover officers and proved to
be both expensive and time consuming. The City also
complained that policing the stands detracted from EPD’s
efforts to address the City’s other priorities.
EDGE V. CITY OF EVERETT 7
After five years of using undercover operations to
prosecute individual offenders, EPD decided its
“investigative approach was an ineffective and resource-
intensive method of motivating stand owners to stop the
illegal conduct” and it began collaborating with the City on
a legislative fix. The City complied by enacting EMC
§§ 5.132.010–060, a Dress Code Ordinance applicable only
to “Quick-Service Facilities” like drive-throughs and coffee
stands. The City also amended its criminal code to broaden
the definition of “lewd act” and created the crime of
Facilitating Lewd Conduct. See EMC §§ 10.24.010;
10.24.025. Because the constitutional challenges in this case
focus on the text and effect of these enactments, we describe
each in some detail.
A. The Lewd Conduct Amendments
The Lewd Conduct Amendments expanded the definition
of “lewd act” to include:
An exposure or display of one’s genitals,
anus, bottom one-half of the anal cleft, or any
portion of the areola or nipple of the female
breast[] or [a]n exposure of more than one-
half of the part of the female breast located
below the top of the areola; provided that the
covered area shall be covered by opaque
material and coverage shall be contiguous to
the areola.
EMC § 10.24.010(A)(1)–(2). An “owner, lessee, lessor,
manager, operator, or other person in charge of a public
place” commits the offense of Facilitating Lewd Conduct if
that person “knowingly permits, encourages, or causes to be
8 EDGE V. CITY OF EVERETT
committed lewd conduct” as defined in the ordinance. Id.
§ 10.24.025(A). Findings supporting the City’s Lewd
Conduct Amendments state that the City “seeks to protect its
citizens from those who profit from facilitating others to
engage in the crime of Lewd Conduct, and so deems it
necessary . . . to create the new crime Facilitating Lewd
Conduct, a gross misdemeanor punishable by a maximum
penalty of 364 days in jail and a $5,000.00 fine[.]”
B. The Dress Code Ordinance
The City did not hide its effort to specifically address the
problems associated with the bikini barista stands when it
adopted the Dress Code Ordinance. The very first factual
finding in the enactment establishing the Dress Code stated
that “[t]he City has seen a proliferation of crimes of a sexual
nature occurring at bikini barista stands throughout the
City[.]” The next paragraph memorialized the City’s
conclusion “that the minimalistic nature of the clothing worn
by baristas at these ‘bikini’ stands lends itself to criminal
conduct[.]”
The Dress Code Ordinance requires all employees,
owners, and operators of “Quick-Service Facilities” to
comply with a “dress requirement” mandating coverage of
“minimum body areas.” EMC § 5.132.020(A). Minimum
body areas are further defined as “the upper and lower body
(breast/pectorals, stomach, back below the shoulder blades,
buttocks, top three inches of legs below the buttocks, pubic
area and genitals).” Id. § 5.132.020(B). The Dress Code
Ordinance defines Quick-Service Facilities as “coffee stands,
fast food restaurants, delis, food trucks, and coffee shops” in
addition to all other drive-through restaurants. Id.
§ 5.132.020(C). This ordinance prohibits owners of Quick-
EDGE V. CITY OF EVERETT 9
Service Facilities from operating their businesses if any
employee is not in full compliance with the dress
requirement. EMC § 5.132.040(A)(1). Violations are
deemed civil infractions. Id. To ensure that stand owners are
motivated to enforce the dress code, the City instituted a $250
fine for first time offenders. EMC § 5.132.040(B)(1). Repeat
offenders face stiffer fines and risk losing their business
licenses. EMC § 5.132.040(B)(1)–(2). In enacting these
provisions, the City expressed its intent to “provide powerful
tools for reducing the illegal conduct that has occurred at
bikini barista stands in a cost-effective manner.”
II. Procedural Background
Plaintiff Jovanna Edge owns Hillbilly Hotties, a bikini
barista stand in Everett. Plaintiffs Leah Humphrey, Liberty
Ziska, Amelia Powell, Natalie Bjerke, and Matteson
Hernandez are, or at one time were, baristas employed at
Hillbilly Hotties. Approximately one week after the Lewd
Conduct Amendments and Dress Code Ordinance went into
effect, plaintiffs filed this lawsuit alleging multiple
constitutional violations, two of which are relevant to this
appeal. Plaintiffs’ complaint alleges: (1) that the Dress Code
Ordinance and the Lewd Conduct Amendments violate their
First Amendment rights to free expression, and (2) that the
new provisions violate the Due Process Clause because they
are unconstitutionally vague.
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
10 EDGE V. CITY OF EVERETT
“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.”1 The
baristas assert that their choice of clothing demonstrates that
they are “fun and more open,” and that wearing bikinis at
work shows they are “empowered, confident, and free.”
Plaintiff Edge, owner of Hillbilly Hotties, explained that her
employees’ dress allows them to “tell stories of who they
are[.]”
Notably, in the district court and on appeal, plaintiffs
persistently disavow that they are nude dancers or that they
engage in erotic performances, conduct that is expressly
protected under the First Amendment. See Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 566 (1991).2 Plaintiffs’
argument is that simply wearing what they refer to as bikinis
is itself sufficiently expressive to warrant First Amendment
protection, and that the City’s new ordinance and
amendments therefore impermissibly burden their speech.
1
We have considered all of plaintiffs’ diverse messages. For brevity,
we refer to the baristas’ intended messages as those “relating to
empowerment and confidence” throughout this opinion, recognizing that
each individual barista’s intended message is likely somewhat unique.
2
Nude dancing and erotic performances are subject to Everett’s pre-
existing ordinances regulating “public places of adult entertainment.” See
EMC § 5.120. These regulations require adult entertainment businesses
to obtain licenses and adhere to standards of conduct and operations,
among other restrictions. See EMC §§ 5.120.030; 5.120.070. Everett’s
zoning ordinances also restrict the location of adult businesses, excluding
them from operating within the downtown core. See id. §§ 19.05.090;
19.05 Table 5.2.
EDGE V. CITY OF EVERETT 11
The City disputes the baristas’ premise that the act of
wearing pasties and g-strings at work constitutes speech. The
City also offers extensive evidence of adverse secondary
effects associated with the stands, including prostitution and
sexual violence, and argues that the new ordinance and Lewd
Conduct Amendments are aimed at those effects.
Plaintiffs’ motion for a preliminary injunction alleged that
the new measures are impermissibly vague because they use
ambiguous language to define parts of the body that must be
covered by employees, owners, and operators of barista
stands, and that a person of ordinary intelligence is denied a
reasonable opportunity to know what conduct the City now
prohibits. The City’s opposition denied that the text of the
Dress Code Ordinance and Lewd Conduct Amendments is
vague or ambiguous, but the City voluntarily agreed to
suspend enforcement of the new measures pending resolution
of plaintiffs’ motion for a preliminary injunction.
III. The Preliminary Injunction
In Winter v. Natural Resources Defense Council, the
Supreme Court held that a plaintiff seeking a preliminary
injunction must establish “[(1)] that he is likely to succeed on
the merits, [(2)] that he is likely to suffer irreparable harm in
the absence of preliminary relief, [(3)] that the balance of
equities tips in his favor, and [(4)] that an injunction is in the
public interest.” Coffman v. Queen of Valley Med. Ctr.,
895 F.3d 717, 725 (9th Cir. 2018) (quoting Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)) (alterations in
original). “Likelihood of success on the merits is the most
important factor; if a movant fails to meet this threshold
inquiry, we need not consider the other factors.” California
12 EDGE V. CITY OF EVERETT
v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (internal quotation
marks omitted).
The district court applied the Winter factors and
concluded that plaintiffs had demonstrated a likelihood of
success on the merits of their vagueness challenges. The
court expressed concern that the compound term “anal cleft”
in the definition of “lewd act” is vague, and also ruled that
both ordinances are susceptible to “arbitrary enforcement.”
Separately, the court concluded that plaintiffs had established
a likelihood of success on the merits of their First
Amendment free expression challenge to the Dress Code
Ordinance, a ruling based on the court’s conclusion that the
act of wearing pasties and g-strings at Quick-Service
Facilities was sufficiently expressive to merit constitutional
protection.
The district court decided that plaintiffs had satisfied the
remaining Winter factors, see 555 U.S. at 7, and enjoined
enforcement of the new ordinances and amendments.
IV. Standard of Review
We review the district court’s order granting a
preliminary injunction “for an abuse of discretion,” Gorbach
v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en banc), but
“legal issues underlying the injunction are reviewed de novo
because a district court would necessarily abuse its discretion
if it based its ruling on an erroneous view of law.” Adidas
Am., Inc. v. Sketchers USA, Inc., 890 F.3d 747, 753 (9th Cir.
2018) (quoting GoTo.com, Inc. v. Walt Disney Co., 202 F.3d
1199, 1204 (9th Cir. 2000)). When an injunction involves a
First Amendment challenge, constitutional questions of fact
(such as whether certain restrictions create a severe burden on
EDGE V. CITY OF EVERETT 13
an individual’s First Amendment rights) are reviewed
de novo. See Prete v. Bradbury, 438 F.3d 949, 960
(9th Cir. 2006) (citing Planned Parenthood of the
Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,
290 F.3d 1058, 1070 (9th Cir. 2002)).
V. The Lewd Conduct Amendments
We first analyze the Lewd Conduct Amendments, which
expanded the definition of “lewd act” and also created the
misdemeanor offense of Facilitating Lewd Conduct.
“It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). That
said, we recognize that “[c]ondemned to the use of words, we
can never expect mathematical certainty from our language.”
Id. at 110. To put a finer point on it: “perfect clarity and
precise guidance have never been required even of
regulations that restrict expressive activity.” United States v.
Williams, 553 U.S. 285, 304 (2008) (quoting Ward v. Rock
Against Racism, 491 U.S. 781, 794 (1989)).
The vagueness doctrine incorporates two related
requirements. First, “laws [must] give the person of ordinary
intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Grayned, 408
U.S. at 108. Typically, all that is required to satisfy this due
process concern is “‘fair notice’ of the conduct a statute
proscribes.” Sessions v. Dimaya, 138 S. Ct. 1204, 1212
(2018). But “where [F]irst [A]mendment freedoms are at
stake, an even greater degree of specificity and clarity of laws
is required,” Kev, Inc. v. Kitsap Cty., 793 F.2d 1053, 1057
(9th Cir. 1986) (citing Grayned, 408 U.S. at 108–09), and
14 EDGE V. CITY OF EVERETT
courts ask whether language is sufficiently murky that
“speakers will be compelled to steer too far clear of any
forbidden area[s.]” Nat’l Endowment for the Arts v. Finley,
524 U.S. 569, 588 (1996) (internal quotation marks omitted).
This enhanced standard protects against laws and regulations
that might have the effect of chilling protected speech or
expression by discouraging participation.
The vagueness doctrine’s second requirement aims to
avoid “arbitrary and discriminatory enforcement,” and
demands that laws “provide explicit standards for those who
apply them.” Grayned, 408 U.S. at 108. A law that relies on
a subjective standard—such as whether conduct amounts to
an “annoyance”—is constitutionally suspect. See id. at 113.
In Coates v. Cincinnati, 402 U.S. 611, 614 (1971), for
example, an ordinance was deemed unconstitutionally vague
because it criminalized the assembly of three or more persons
on city sidewalks if they conducted themselves in a manner
annoying to passers by. The Supreme Court observed that
“[c]onduct that annoys some people does not annoy others,”
id., and it struck down the ordinance because “men of
common intelligence must necessarily guess at its meaning.”
Id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391
(1926)).
Here, the district court concluded that the amended
definition of “lewd act” similarly fails to give a person of
ordinary intelligence a reasonable opportunity to conform his
or her conduct to the City’s law. The court explained that it
was “uncertain as to the meaning of the compound term ‘anal
cleft’ as used” in the amended definition, because “[t]he term
‘bottom one-half of the anal cleft’ is not well-defined or
reasonably understandable[.]” We reach the opposite
conclusion. Having examined the text adopted by the City,
EDGE V. CITY OF EVERETT 15
we are not persuaded that the public will be left to guess at
the meaning of the term “anal cleft,” particularly because the
meanings of both “anal” and “cleft” are easily discerned
through recourse to a common dictionary. See, e.g., United
States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005) (relying
in part on the dictionary definition of an allegedly ambiguous
term); Kev, Inc., 793 F.2d at 1057 (same).3 Moreover, “[t]his
circuit has previously recognized that otherwise imprecise
terms may avoid vagueness problems when used in
combination with terms that provide sufficient clarity.”
Gammoh v. City of LaHabra, 395 F.3d 1114, 1120 (9th Cir.
2005) (citing Kev, Inc., 793 F.2d at 1057). The Lewd
Conduct Ordinance uses the term “anal cleft” in near
proximity to a list of other intimate body parts. Viewing
these facts together, we conclude that a person of ordinary
intelligence reading the ordinance in its entirety will be
adequately informed about what body areas cannot be
exposed or displayed “in a public place or under
circumstances where such act is likely to be observed by any
member of the public.” EMC § 10.24.020. Likewise, we
conclude that the modifier “bottom one-half” does no more
than specify an easily ascertained fractional part of an
otherwise well-understood area of the body. Plaintiffs do not
expressly challenge the new misdemeanor Facilitating Lewd
Conduct on vagueness grounds, but we note that this
provision does no more than prohibit owners, operators,
lessors, lessees or any person “in charge of a public place”
3
Merriam-Webster defines “anal” as “of, relating to, situated near,
or involving the anus” and defines “cleft” as “a space or opening made by
or as if by splitting.” (emphasis added). It goes on to identify the phrase
“the anal cleft of the human body” as an example. See Merriam-Webster
Online Dictionary, www.merriam-webster.com/dictionary/cleft (last
visited June 25, 2019). We agree with the City that “[t]here is only one
possible portion of the human body that fits this description.”
16 EDGE V. CITY OF EVERETT
from knowingly permitting, or causing another person to
commit lewd conduct as defined in EMC § 10.24.010. This
prohibition is clear, as is the definition of lewd conduct. We
therefore hold that the activity the Lewd Conduct
Amendments prohibit is reasonably ascertainable to a person
of ordinary intelligence.4
The second part of the vagueness test concerns whether
the Lewd Conduct Amendments are amenable to unchecked
law enforcement discretion. See, e.g., Papachristou v. City
of Jacksonville, 405 U.S. 156, 169–70 (1972).5 Definitions of
proscribed conduct that rest wholly or principally on the
4
The district court did not analyze whether any term other than “anal
cleft” is reasonably ascertainable to a person of ordinary intelligence, and
we decline to do so in the first instance.
5
The Jacksonville, Florida ordinance at issue in Papachristou deemed
the following people “vagrants” and therefore guilty of a criminal offense:
Rogues and vagabonds, or dissolute persons who go
about begging, common gamblers, persons who use
juggling or unlawful games or plays, common
drunkards, common night walkers, thieves, pilferers or
pickpockets, traders in stolen property, lewd, wanton
and lascivious persons, keepers of gambling places,
common railers and brawlers, persons wandering or
strolling around from place to place without any lawful
purpose or object, habitual loafers, disorderly persons,
persons neglecting all lawful business and habitually
spending their time by frequenting houses of ill fame,
gaming houses, or places where alcoholic beverages are
sold or served, persons able to work but habitually
living upon the earnings of their wives or minor
children[.]
Papachristou, 405 U.S. at 156 n.1.
EDGE V. CITY OF EVERETT 17
subjective viewpoint of a law enforcement officer run the risk
of unconstitutional murkiness. See, e.g., Gammoh, 395 F.3d
at 1119–20 (collecting cases); Tucson Woman’s Clinic v.
Eden, 379 F.3d 531, 554–55 (9th Cir. 2004). Everett’s
definition of lewd conduct requires that certain areas of the
body be covered in public and as we have explained, the
definition is not ambiguous. Nor does the definition rely on
the subjective assessment of an enforcing officer. The term
“anal cleft” is clear and ascertainable and what constitutes the
“bottom half” of this unambiguously described part of the
human body is also an objective standard. In short, EMC
§ 10.24.010’s description of the body parts that must be
covered in public does not create a constitutional problem by
inviting discretionary enforcement because there are
“standards governing the exercise of the discretion granted by
the ordinance[.]” Papachristou, 405 U.S. at 170.
Plaintiffs argue that there will be close cases requiring
some degree of law enforcement subjectivity when the Lewd
Conduct Amendments are enforced, and the district court
shared this concern. But “the mere fact that close cases can
be envisioned” does not render an otherwise permissible
statute unconstitutionally vague. Williams, 553 U.S. at 305.
The Supreme Court has observed in other criminal contexts
that close cases are addressed “not by the doctrine of
vagueness, but by the requirement of proof beyond a
reasonable doubt.” Id. at 306. Put another way, in close
cases, a fact finder will decide whether the City has met its
burden by the required standard of proof. That determination
does not raise constitutional vagueness concerns so long as
the legal standard against which it is measured is sufficiently
clear. All a statute must define with specificity is what the
fact finder is required to decide in any given case. See id.
(“What renders a statute vague is not the possibility that it
18 EDGE V. CITY OF EVERETT
will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved; but rather
the indeterminacy of precisely what that fact is.” (emphasis
added)).
The district court abused its discretion by ruling that
plaintiffs are likely to succeed on the merits of their void-for-
vagueness challenge to the Lewd Conduct Amendments. We
therefore vacate the district court’s preliminary injunction
with respect to the Lewd Conduct Amendments.
VI. The Dress Code Ordinance
We next consider the district court’s order enjoining
enforcement of the Dress Code Ordinance. EMC § 5.132.030
mandates that employees, operators, and owners of “Quick-
Service Facilities” comply with the City’s dress requirement.
The Dress Code Ordinance makes it unlawful to serve
customers or operate a Quick-Service Facility if “minimum
body areas” of the owner or any employee are not covered.
EMC § 5.132.030. “Minimum body areas” are defined as:
“breast/pectorals, stomach, back below the shoulder blades,
buttocks, top three inches of legs below the buttocks, pubic
area and genitals.” EMC § 5.132.020(B). The district court
enjoined the Dress Code Ordinance for two distinct reasons:
(1) the court concluded that the Dress Code Ordinance’s
susceptibility to arbitrary enforcement renders it
unconstitutionally vague; and (2) the district court concluded
that the Dress Code Ordinance likely fails First Amendment
review because it impermissibly burdens plaintiffs’ rights to
free expression. We address each rationale in turn.
EDGE V. CITY OF EVERETT 19
A. Vagueness
The vagueness principles governing our analysis of the
Lewd Conduct Amendments apply with equal force to the
Dress Code Ordinance. The fact that law enforcement may
have to make some close judgment calls regarding
compliance with these provisions does not, perforce, mean
that police are vested with impermissibly broad discretion.
See Williams, 553 U.S. at 306. The terms of the Dress Code
Ordinance are sufficiently clear to preclude enforcement on
“an ad hoc and subjective basis” because the dress
requirement clearly defines areas of the body that owners and
employees must cover while operating Quick-Service
Facilities, using commonly understood names for those body
areas. Hunt v. City of L.A., 638 F.3d 703, 712 (9th Cir. 2011).
Enforcement does not require subjective judgments. Id. All
an officer must determine is whether the upper body
(specifically, the breast/pectorals, stomach, back below the
shoulder blades) and lower body (the buttocks, top three
inches of legs below the buttocks, pubic area and genitals) are
covered. The meaning of these parts of the body is not
beyond the common experience of an ordinary layperson, and
the ordinance does not require that officers assessing
potential violations delve into subjective questions. Cf. id.
(observing that what constitutes a “religious, political,
philosophical, or ideological” message is subjective).
Because the Dress Code Ordinance is not open to the kind of
arbitrary enforcement that triggers due process concerns, the
vagueness doctrine does not warrant an injunction prohibiting
enforcement of the Dress Code Ordinance.
20 EDGE V. CITY OF EVERETT
B. Free Expression
The district court also concluded that plaintiffs
demonstrated a likelihood of success on the merits of their
First Amendment challenge to the Dress Code Ordinance.
This part of the court’s order relied on its determination that
the baristas’ choice to wear provocative attire (pasties and g-
strings) constituted sufficiently expressive conduct to warrant
First Amendment protection, that the Dress Code Ordinance
amounted to a content-neutral restriction on the baristas’
speech, and that the Dress Code Ordinance failed
intermediate scrutiny under the “secondary effects” line of
cases. See City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 48 (1986) (applying intermediate scrutiny to ordinances
aimed at combating the side-effects of adult and sexually
oriented businesses).
“The First Amendment literally forbids the abridgment
only of ‘speech,”’ but the United States Supreme Court has
“long recognized that its protection does not end at the
spoken or written word.” Texas v. Johnson, 491 U.S. 397,
404 (1989). The Supreme Court refers to non-speech activity
that is within the ambit of the First Amendment’s protections
as “expressive conduct.” See, e.g., Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984). Conduct
that is “sufficiently imbued with elements of communication”
is protected by the First Amendment, Johnson, 491 U.S. at
404 (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)
(per curiam)), but the Court “has consistently rejected ‘the
view that an apparently limitless variety of conduct can be
labeled ‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.’” Anderson v. City of
Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir. 2010)
(quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)).
EDGE V. CITY OF EVERETT 21
The Court has never “invalidated the application of a general
law simply because the conduct that it reached was being
engaged in for expressive purposes and the government could
not demonstrate a sufficiently important state interest.”
Barnes, 501 U.S. at 577 (Scalia, J., concurring). “Because
the Court has eschewed a rule that ‘all conduct is
presumptively expressive,’ individuals claiming the
protection of the First Amendment must carry the burden of
demonstrating that their nonverbal conduct meets the
applicable standard.” Knox v. Brnovich, 907 F.3d 1167, 1181
(9th Cir. 2018) (quoting Clark, 468 U.S. at 293 n.5).
Expressive conduct is characterized by two requirements:
(1) “an intent to convey a particularized message” and (2) a
“great” “likelihood . . . that the message would be understood
by those who viewed it.” Johnson, 491 U.S. at 404 (quoting
Spence, 418 U.S. at 410–11); see also Vivid Entm’t, LLC v.
Fielding, 774 F.3d 566, 579 (9th Cir. 2014). With respect to
the first requirement—an intent to convey a particularized
message—First Amendment protection is only granted to the
act of wearing particular clothing or insignias where
circumstances establish that an unmistakable communication
is being made. See, e.g., Nat’l Socialist Party of Am. v.
Village of Skokie, 432 U.S. 43 (1977) (per curiam) (declining
to enjoin Nazi marchers from wearing symbols of ideology in
parade); Cohen v. California, 403 U.S. 15, 18 (1971)
(concluding that a person wearing a jacket bearing the
inscription “F— the Draft” was entitled to First Amendment
protections); Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 505–06 (1969) (holding that students who wore
black armbands to protest Vietnam War engaged in
expressive conduct “‘closely akin to pure speech[.]’”).
22 EDGE V. CITY OF EVERETT
Even if plaintiffs could show that their intent is to convey
a particularized message, and thereby satisfy the first
requirement for classification as expressive conduct, Johnson,
491 U.S. at 404, plaintiffs’ First Amendment claim falters for
failure to show a great likelihood that their intended message
will be understood by those who receive it. See id.
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[.]” Spence, 418 U.S. at 411. The Supreme
Court made this clear in Spence, where a college student
displayed a flag with an attached peace symbol from his
university dorm room “roughly simultaneous with” the
United States’ invasion of Cambodia and the Kent State
shootings. Id. at 410. Under these circumstances, the
Supreme Court observed that “it would have been difficult for
the great majority of citizens to miss the drift of [the
student’s] point at the time that he made it.” Id. Likewise,
the choice to wear military medals—even medals one has not
earned—“communicates that the wearer was awarded that
medal and is entitled to the nation’s recognition and gratitude
‘for acts of heroism and sacrifice in military service.’”
United States v. Swisher, 811 F.3d 299, 314 (9th Cir. 2016)
(en banc) (quoting United States v. Alvarez, 567 U.S. 709,
724 (2012) (Kennedy, J., plurality opinion)). In the same
way, a student group’s choice to wear black arm bands to
school during the 1965 holiday season was protected by the
First Amendment because the group’s intended anti-Vietnam
War message “was closely akin to ‘pure speech[.]’” Tinker,
393 U.S. at 505.
EDGE V. CITY OF EVERETT 23
The context here is starkly different from cases where
First Amendment protection has been extended to expressive
clothing or symbols. The Dress Code Ordinance applies at
Quick-Service Facilities—coffee stands, fast food restaurants,
delis, food trucks, coffee shops and drive-throughs. See EMC
§ 5.132.020(C). In other words, it applies at retail
establishments that invite commercial transactions, and in
these transactions, the baristas undisputedly solicit tips. 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.
We stress that plaintiffs deny that they engage in nude
dancing and erotic performances, thereby disavowing the
First Amendment protections available for that conduct. See
Barnes, 501 U.S. at 566. The outcome of this case turns on
the plaintiffs’ contention that the act of wearing almost no
clothing while serving coffee in a retail establishment
constitutes speech. Because wearing pasties and g-strings
while working at Quick-Service Facilities is not “expressive
conduct” within the meaning of the First Amendment, the
Dress Code Ordinance does not burden protected expression.
24 EDGE V. CITY OF EVERETT
The district court’s application of intermediate scrutiny
under the “secondary effects” line of authority was inapposite
because that doctrine applies to regulations that burden
speech within the ambit of the First Amendment’s sphere of
protection. See World Wide Video of Wash., Inc. v. City of
Spokane, 368 F.3d 1186, 1192 (9th Cir. 2004). Here, because
the Dress Code Ordinance does not burden expressive
conduct protected by the First Amendment, the City need
only demonstrate that it “promotes a substantial government
interest that would be achieved less effectively absent the
regulation.” Rumsfeld v. Forum for Acad. & Institutional
Rights, Inc., 547 U.S. 47, 67 (2006) (quoting United States v.
Albertini, 472 U.S. 675, 689 (1985)). The district court did
not analyze the ordinance under this framework, so we vacate
its preliminary injunction and remand for further proceedings.
VACATED AND REMANDED.