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City of Everett Can Force Bikini Baristas To Cover Their Butts, 9th Circuit Rules

• https://reason.com

The law is an ass, cleft and all.

Last week a federal appeals court ruled bikini-clad baristas in Everett, Washington, will have to cover up while they make coffee and serve customers.

As I detailed in a 2017 column, the bikini-barista business model, which is popular in my home of Washington State, features baristas in small coffee stands who wear skimpy attire while serving coffee to customers through a drive-up window. Everett officials, who claim the bikini barista stands are responsible for "prostitution and sexual violence," adopted a pair of moralistic ordinances to combat them two years ago.

That spurred the lawsuit, filed by several baristas and their employer.

In a 24-page opinion, a Ninth Circuit Court of Appeals panel ruled that the U.S. District Court in Seattle erred in granting a temporary injunction that had barred Everett officials from enforcing the ban while the suit proceeded. The Ninth Circuit rejected the argument that the law violates the baristas' First Amendment right to free expression and lifted the injunction, meaning the ban is back on while the lawsuit proceeds in district court.

The Everett crackdown traces its origin to a series of complaints that began in the city nearly a decade ago. Accusers included an apparently eagle-eyed mother who told Everett police that while driving by a coffee stand she saw a customer grope a bikini-clad barista's "intimate areas" while the next customer in line "was clearly touching his genitals through his clothes as he was waiting his turn." 

In keeping with the prurient theme, this month's ruling turned in part on the Everett law's ban on the public display of some portions of a worker's "anal cleft." While the District Court had determined the Everett law is impermissibly vague "because "[t]he term 'bottom one-half of the anal cleft' is not well-defined or reasonably understandable," the Ninth Circuit ruled that the law is clear because both the term and its midpoint can be easily understood. In this way, the Ninth Circuit's apparent familiarity with the particulars of the anal cleft recalls Supreme Court Justice Potter Stewart's famously detail-free explanation of pornography: "I know it when I see it."

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