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Atlanta Councilmembers Propose Ban on Baggy Pants:

Councilmembers C.T. Martin, Ceasar C. Mitchell, H. Lamar Willis, and Ivory L. Young, Jr. are proposing a citywide ban on "[t]he indecent exposure of [one's] undergarments." The goal: stamping out "the dress fad of wearing low hanging/saggy pants which exposes ones underwear."

Such ordinances are bad for many reasons, but consider just one set, which I blogged out when a similar law was proposed in Dallas: How does one distinguish impermissible dress from the permissible? Much underwear, after all, is not easily distinguishable from many swimsuits.

Would the rule be that it's OK to wear a boxer or a brief or a swimsuit top if you're wearing it alone, OK if you're covering it up with pants or a shirt, but not OK if it's halfway in between? (What about a woman who's wearing a swimsuit top with a shirt thrown over it, but the shirt hanging open in front, so that the swimsuit top is visible?) Would the law distinguish by fabric, on the theory that swim trunks and bikini tops tend to be made of a different fabric than briefs, boxers, and bras? Where would sport bras fit?

The councilmembers react to all this by punting: They recognize that they can't ban all exposure of undergarments, but want to ban some exposure of undergarments, so they settle on banning "indecent" exposure. But that just means that individual judges, prosecutors, and perhaps jurors have to decide which displays are "indecent."

Perhaps the term "indecent" may be sensible in those areas in which there's something of a settled socially accepted meaning for it — "indecent exposure" of one's body parts might qualify, though even there the term is problematic, and well-drafted indecent exposure laws define the prohibited conduct in detail. But I know of no such accepted meaning for "indecent exposure of ... undergarments."

Is showing the top inch of a pair of boxers "indecent" (setting aside whether it's ugly or associated with what one sees as a bad attitude)? What about letting a bra strap occasionally peek out from a string top? Does a white tanktop of the sort often worn by men in cold climates under a shirt count as an "undergarment[]" — and, if so, does wearing just such a tanktop (and pants, of course) qualify as "indecent"?

I accept that the government may sometimes ban certain kinds of offensive public behavior, simply because it's offensive in particular ways. I'd keep the zone quite narrow, but I do think that public nudity can properly be banned; even many of those who disagree with me on that would, I take it, allow bans on public sex. I also accept that some laws will inevitably be relatively vague; consider laws punishing criminally negligent homicide, for instance. But such vagueness is a weakness of laws, not their strength; it should only be accepted when it's necessary to do something really important. Banning "indecent exposure of ... undergarments" doesn't qualify.

Clayton Cramer, who is more upset by the underlying practice than I am, nonetheless shares my view about the weaknesses of trying to ban the practice. Thanks to Nolan Reichl for the pointer to the story.

Anderson (mail) (www):
P.S. to Orin and David -- next time you think about bumping my post off the top of the page, think again. I may not be so forbearing next time.
8.24.2007 6:38pm
Fco (www):
What interests me about this story (apologies for going off topic), is that a counterargument to the law is that since the main offenders are inner city african-american youths, the law is therefore targeting a specific ethnic group and is tantamount to racial profiling. See here: http://abcnews.go.com/GMA/OnlyinAmerica/story?id=3519569

Is there any legal merit to these kinds of accusations? Can the law be overturned on these grounds? If not, why would they even bother to make the case. Maybe this could be discussed/answered in another thread.
8.24.2007 6:39pm
Eugene Volokh (www):
Anderson: You've discovered my hidden agenda! But my cover story is that the original post had comments broken for some reason, and I reposted it to get comments working again. Or so I will insist.

Fco: The general answer is the law can't be overturned simply because it has a racially disparate impact (consider how many laws have such an impact), but can only be overturned if it's shown that the law was motivated by the desire to have that racial impact. I take it that such discriminatory intent would be hard to show in this case. (Note, for whatever it's worth, that all four of the councilmen who are listed as the law's sponsors appear to be black.)
8.24.2007 6:50pm
Syd Henderson (mail):
If baggy pants are outlawed, only outlaws will wear baggy pants.
8.24.2007 6:57pm
John (mail):
As I see it, the law is plainly directed at hip-hop clothing style and is based on the largely hopeless thought that if we can just get certain kids to stop acting like idiots they will, in fact, stop being idiots.

It is a legislative attempt at parenting where parents are not doing a good job, and it will therefore fail in practice whether or not it fails in the courts.
8.24.2007 7:31pm
Henry Schaffer (mail):
I usually wear a sport shirt open at the neck. In cool/cold weather I wear an undershirt which shows at the neck. Would that be a violation?!!!

Hmm, this also lends some terror to the helpful, "Your slip is showing." comment. :-)
8.24.2007 7:33pm
anonVCfan:
One thing more annoying than baggy, sagging pants is the rhetoric that will accompany the First Amendment arguments that the people who challenge this ordinance will make. For the sake of preventing us from having to endure listening to that, this ban shouldn't be passed.
8.24.2007 7:40pm
EH:
Atlanta is the city that banished James Brown from its city limits when he was a teen, right? We can leave the inferences quiet on that issue...

That said, anybody who thinks hip-hop clothing is racial does not get out much these days. If anything, this is cultural (fashion?) profiling and would probably be easier to prove that angle if this is in fact actionable.
8.24.2007 7:40pm
anonVCfan:
.... e.g., this is viewpoint discrimination against DJ Khaled, T-Pain, and Rick Ross.

Lyrics (excerpt):


I'm So Hood (Listen)
I Wear My Pants Below My Waist
For The Land That Dance For The Men Up In This Place
Cause You And Your Man Is Plannin To Hate (I'm So Hood)
And I Got These Golds Up In My Mouth If You Get Closed Into My House Then You Know What I'm Taking Bout I'm Out The Hood
And If You Feel Me Put Your Hands Up (hood) My Hood Of Niggas Can You Stand Up (I'm So Hood)
If You Not From Here You Can Walk It Out And You Not Hood Then You Don't Know What I'm Talkin Bout

Everybody Wanna Mother Fuckin Know Why I Dress So Fly Sit So High (Bitch)
I Do It For The Hood
8.24.2007 7:46pm
theobromophile (www):
EV - you forgot that women often show camisoles while wearing suits or blouses. The City Council ought to have at least restricted "undergarmets" to those worn on the lower half of the body; we tend to find little indecent (or worthy of regulation) about the exposure of white t-shirts on men or bra straps, camisoles, or sports bras on women.
8.24.2007 7:49pm
FYI:
Since 6:40 is suggesting that race is a motivating factor, take note that the city council member sponsoring the bill is black.
8.24.2007 8:10pm
CheckEnclosed (mail):
Laws like this may create true fashion felons, but probably won't have much of a chillings effect.
8.24.2007 8:43pm
Cornellian (mail):
Don't they realize this will make it impossible to find a plumber in Atlanta?

It's hard to believe they really think they can draft a bylaw that makes it unlawful to expose the top 1" of a pair of boxer shorts while still leaving it perfectly lawful for guys to wear speedos at public swimming pools.
8.24.2007 8:57pm
Wes Johnson:
What a bunch of retards.
8.24.2007 9:00pm
Daryl Herbert (www):
How do they define underwear? Can't someone just claim to be wearing 2 pairs of pants?

Are the police really authorized to investigate his defense by pulling down his pants even further?
8.24.2007 9:39pm
Richard Gould-Saltman (mail):
Life must be good in Atlanta, if there so little real crime, and so much excess tax revenue that the City Counsel really feels compelled to spend a minute of police time, or a dime of court system resources on this sort of unenforceable nonsense. Are they also proposing ciminalizing "inappropriate and insolent hairstyles"? How's about a ban on the wearing of "grillz" by musical performers where the appliance renders the performer's vocal performance unintelligible?

Or, alternatively, is this, like parking enforcement, really a revenue-GATHERING measure, in effect a "droopy pants tax" enforced through the sartorial equivalent of meter maids? If so, I'd also vote for the imposition of a similar tax/fine aginst those persons exceeding the AMA definition of obesity who are wearing spandex bike shorts.

Evidence, unfortunately, that sanctimonious silliness is not confined to WASP conservative Southern politicians...

R. Gould-Saltman,
once, but no longer, the proud bearer of an inappropriate hairstyle.
8.24.2007 9:56pm
JB:
This is an example of the ridiculous nature of "disapproval lawmaking." That is, laws based on the "this is bad, let's forbid it" model, instead of the "this is bad, let's pass laws that will have the effect of restricting it."

Unfortunately, the former is easier to think up and sell, so we get more of it.
8.24.2007 10:04pm
Dave N (mail):
What a bunch of retards.

I wasn't sure who Wes Johnson was referring to--those who wear baggy pants or the Atlanta City Council members making this proposal.

Then the answer came to me: BOTH groups.
8.24.2007 10:07pm
LarrySheldon (mail):
One of the down-sides (there are several) of being old is that I can remember the past fads and the fool-hardiness of them.

Global cooling, nuclear winter (to be caused by dust amounts tiny by comparison with your average volcano), long hair, short hair, long skirts, short skirts, beards, tight pants, loose pants, cell phones, ghetto blasters, low riders, loud pipes, ....

Facts are no clothes in the case of people like me might be an actionable offense but most of the rest are not. Well the ones involving noise and smell should be.
8.24.2007 10:10pm
rbj:
This is not so much against hip-hop culture, but rather the gangsta culture where guys take pride in having been in prison. Baggy pants are crude, but really they are just a sympton. Go after the causes of why some young men are attracted to such a nihilistic sub-culture.

Richard Gould-Saltman has it right. The Atlanta city council surely has better things to do.
8.24.2007 10:56pm
Perseus (mail):
I wonder if Clayton Cramer believes that the woman wearing the pink spaghetti string "Ranger Up" tank top in the advertisement that appears at the very top of his webpage qualifies as indecent or merely provocative.
8.24.2007 11:09pm
Smokey:
Now that Atlanta has all the pot holes fixed, they can pass an underwear law. But they have a ways to go before things get as bad as Berkeley.
8.24.2007 11:12pm
Ex parte McCardle:
Ex parte McCardle, a proud native son and lifelong resident of the beautiful city of Atlanta, sez:

Resurgens!
8.24.2007 11:46pm
Rick Wilcox (www):
Perhaps the legislators just left their terminals open?
8.25.2007 12:07am
Ahcuah (mail):
OK, just what legitimate governmental interest would this ordinance be rationally related to?

I'm aware of esthetics being legitimate for zoning purposes, but that's quite a bit different. And it's not like any piece of displayed underwear is indecent. Not only that, indecency regulations under the police power talk about the use of the police power to protect the public's health, safety, morals,
with emphasis on the morals. I don't see how the display of a pair of boxer shorts (and not naughty bits) can legitimately claim any sort of relation to morals. (Also note that the morals part is slowly evaporating as courts have realized that a lot of "morals" are mere prejudice.)
8.25.2007 1:44am
Elliot123 (mail):
Hmmm... Another thread here suggests legislatures will make better decisions than the executive because legislatures have more members than the exeutive.
8.25.2007 1:49am
David Matthews (mail):
http://news.bbc.co.uk/2/hi/africa/6962871.stm

I'm of several minds on Atlanta's efforts, but I'm in complete agreement with Liberia's. It's true that Liberia's constitution is distinctly different from our own. For example, while I lived there the Liberian Supreme Court re-affirmed that citizens had no constitutionally-protected religious exemption from reciting a pledge -- Chief Justice Chea Chepo, writing for the majority, explicitly reminded the ACLU (which, according to the local press, had funded the defendants' case, although I'm not at all sure of the veracity of the accusation) that "Liberia does not begin with an 'A' " -- I'm putting this down from memory, but it was in several Monrovian papers c. 1988. But perhaps, in simply examining the issues in light of common sense, this comparison will help to illustrate Justice Thomas' perspective in BongHits4Jesus.

Prohibiting saggin' in public schools is one thing; prohibiting saggin' on city streets, something very different. And I'd assume that prohibiting saggin' in a commercial establishment is something yet again different. My favorite bar in St. Paul, MN prominently features a "no saggin' " sign (complete with a red circle/slash around and through a pair of baggy pants surmounted by a, well, you know what it's surmounted by.)
8.25.2007 2:56am
Houston Lawyer:
My kids' school (public) prohibits this type of clothing. Anyone want to bring suit claiming that this somehow violates their constitutional rights?

I've read that the baggy pants are a boon to cops, since the idiots wearing the pants can't run in them or run right out of them.
8.25.2007 11:14am
speedwell (mail):
What am I missing here? I thought underwear was what you wore to avoid committing indecent exposure.
8.25.2007 12:36pm
CJColucci:
What's the big deal? Just don't wear underwear.
8.25.2007 1:56pm
nevins (mail):
baggy pants are useful to aprehend thieves
8.25.2007 5:59pm
Clayton E. Cramer (mail) (www):

I wonder if Clayton Cramer believes that the woman wearing the pink spaghetti string "Ranger Up" tank top in the advertisement that appears at the very top of his webpage qualifies as indecent or merely provocative.
Merely provocative (for that model). For some women who might wear that, it qualifies as gross, and for some, downright stupid! I'm sure that there are people who would regard it as indecent. Hence the importance of writing laws that:

1. Represent a consensus--not just 51% support.

2. Are clear as to what is prohibited. Hence, laws that prohibit the exposure of a woman's nipple are clear as to what is banned. Underwear, without a much more precise definition, is a legal quagmire.
8.25.2007 6:00pm
PersonFromPorlock:
Perseus:

I wonder if Clayton Cramer believes that the woman wearing the pink spaghetti string "Ranger Up" tank top in the advertisement that appears at the very top of his webpage qualifies as indecent or merely provocative.

Well, it's protected by the Right to Bare Arms.

(cringes) "Forgive, Master!..."
8.25.2007 6:51pm
Buckland (mail):
Talked to [non atlanta] cop about this issue once. He actually liked the baggy pants fad. The idea is that there are very few people who can outrun him if they're using one hand to hold up their pants while running.
8.25.2007 9:30pm
Anonymous0938243:
Clayton Cramer:

Hence the importance of writing laws that . . . [r]epresent a consensus--not just 51% support."


So you keep the status quo on the books even though it has only 49% support?
8.26.2007 2:50am
Milhouse (www):
Most Orthodox Jewish men wear a garment called a tallet katan under their shirts, in fulfillment of Numbers 15:37-41. It's shaped much like a poncho, with sets of eight strings hanging off each of the four corners. Many have it completely covered and invisible from the outside, but many have the strings hanging out at their sides, in literal fulfillment of Numbers 15:39's reference to "looking at them". This proposed law would appear to ban this latter practise.
8.26.2007 7:04pm
anonVCfan:
The most important question raised by this proposal is whether it would affect whale tails.
8.26.2007 7:32pm
Smokey:
Ever wonder why shirt tails are long, and rounded at the bottom? It's because the shirt tail served as underwear [source: the Economist]. The wearer would fold the front and back tails under his ...um, well, you get the idea.

I would encourage the Atlanta city council to appoint a subcommittee to look into shirt tail regulations.
8.27.2007 3:05pm
ReaderY:
I simply don't buy the argument that it's all a matter of opinion and impossible to enforce. One can say this about anything. As Justice Holmes put it, there is no clear line between day and night, there are only shades of grey, and yet the two are very useful concepts.

It's often difficult to define what religion is, but would liberals agree to simply throw out the establishment clause as unworkable because we can't always define what's religious and what's not? There are a lot of shades of grey racially, but would anyone seriously agree to throw out racial discrimination laws because we can't always define what race a person is?

Nobody actually buys this argument for anything they actually support or agree with. Try to apply it to anything you actually favor and you'll see it can be equally well used for anything -- and is complete horse swill unless one doesn't want the law involved used anyway. In short, it's only used as an argument for things one is really objecting to on other grounds that one is unable or unwilling to articulate or admit. It's a code phrase that's only applied to things one doesn't approve, neve to things one does.

The issue isn't that people favoring the law can't define what's indecent. They can. The issue is that Professor Volokh doesn't like their definition.

Fine, but for crying out loud, be honest you don't like it. Argue for general liberty of the individual or whatever you want, but the "you can't define it" is just plain silly.
8.27.2007 10:46pm