Law in Focus: Bikini Baristas and Free SpeechMarch 22nd, 2010 by josh farley
(Blogger’s note: Stan Glisson, a local Bremerton defense attorney, is back to help us sort through the legal issues of the so-called “bikini baristas.” Here’s his take. You can read his earlier posts here.
The first amendment to the US constitution prohibits the government from “abridging the freedom of speech”, among other things. It is said that many delegates to the Constitutional Convention refused to sign the Constitution without a bill of rights, they considered these rights so important. Freedom of speech has been interpreted over the last two centuries to include a variety of forms of expression, primarily to ensure to Americans that our government can never censor critical examination. Questioning the government is undoubtedly protected. Also literature, for example, of essentially any type is safe; film is protected, as is protesting, organization of labor, and now … pasties?
Around the state, scantily dressed baristas have been in the news. Young women working the stands have been alleged to wear shorts, bikinis, bras, sometimes just pasties. Arrested in Snohomish county, charged in Pierce county with public exposure, the coffee stands are drawing more and more attention, while increasing in number. They are clearly popular, but troublesome to some. So should the county take action? Should they be outlawed; can the employees charged and arrested?
Luckily, our local authorities are devoting their time to more pressing matters. Also, the law allowing prosecution of the semi – clothed baristas doesn’t appear to exist here. State law only prohibits exposure of the body if likely to cause “affront or alarm”. Hard to imagine, in a scenario where the women really are only seen by those who seek them out. In Pierce, the county code pretty clearly outlaws pasties in any public place. The Bremerton code, incidentally, contains a nearly identical provision. The Kitsap County code, however, doesn’t appear to contain any such prohibition. So in the unincorporated county, it certainly seems that none of these stands are breaking the law by dressing employees in swimsuits, undergarments, or pasties.
The local government could draft a law to prohibit such shops if it so desired. But should it? Would the Constitution allow it? The First Amendment has certainly been invoked to protect more offensive forms of expression than minimal clothing. Crude t-shirts, bumper stickers, random vulgarities that we hope our kids don’t notice – these are offenses we routinely endure, but are protected. We have become desensitized to the ubiquitous comic strip character urinating on disfavored car company logos (And if you have stick figures representing your family members in your back window, well … I guess you have rights too). Pornography, flag desecration, even racism and hate speech; these have all been specifically protected by the highest courts in the country. We each have the right to express ourselves in almost any creative way, regardless of offensiveness to others. In fact, it’s generally only offensive expression that requires protection.
The French author Voltaire is quoted as saying, “I may disagree with what you say; but I will defend with my life your right to say it.” We express ourselves in words, action, association with others, and yes – our clothing. By what we wear, we create an image and express an attitude. The government can’t outlaw particular styles of dress any more than it can regulate the music you listen to or the color of the tie you wear to work. If a shop owner wants to create a certain climate or entice a certain clientele by having employees dressed in skimpy clothing, it seems to me that we as a society have to allow it. If we lived in a warmer climate, such attire might not be so rare. But if we deny the right to baristas to wear bikinis to work, what right are you willing to give up next?
Stan Glisson is an attorney in Bremerton with the firm Glisson and Witt. Their firm mainly handles DUI and misdemeanor defense, as well as felony defense. Glisson earned his law degree at the University of Washington, has worked as a Kitsap County deputy prosecutor, and as a Kitsap and Snohomish defense attorney before entering private practice.