Edge v. City of Everett, No. 17-36038 (9th Cir. 2019)Annotate this Case
The Ninth Circuit vacated the district court's grant of a preliminary injunction against enforcement of the city's Dress Code Ordinance -- which required that the dress of employees, owners, and operators of Quick-Service facilities cover "minimum body areas" -- and the amendments to the Lewd Conduct Ordinances.
The panel held that plaintiffs, owners and employees of a bikini barista stand, failed to 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. The panel held that the activity the Lewd Conduct Amendments prohibit is reasonably ascertainable to a person of ordinary intelligence, and the Amendments were not amenable to unchecked law enforcement discretion.
The panel also held that the Dress Code Ordinance is not open to the kind of arbitrary enforcement that triggers due process concerns, and thus the vagueness doctrine does not warrant an injunction prohibiting enforcement of the Dress Code Ordinance. Furthermore, plaintiffs have not demonstrated a "great likelihood" that their intended messages related to empowerment and confidence will be understood by those who view them, and thus the mode of dress at issue in this case is not sufficiently communicative to merit First Amendment protection. Finally, the panel held that 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. In this case, the Dress Code Ordinance does not burden expressive conduct protected by the First Amendment, and thus the City need only demonstrate that it promotes a substantial government interest that would be achieved less effectively absent the regulation. The panel remanded for further proceedings.