The city of Wildwood along the Jersey Shore is planning on banning “saggy pants” on their boardwalk. You know, the gangsta (and Bieber) style of wearing one’s pants well-below ones underwear.
Oh, and they’re planning on banning bare feet, too.
Here’s the story: Wildwood Considers Banning Baggy Pants On Boardwalk.
The ordinance requires
— The waist band of shorts, swim-trunks, pants and/or skirts shall not be worn more than 3 inches below the wearer’s waist — interpreted to mean at a level below the crest of the ilium, so as to expose either skin or garment underneath — at any time.
— A shirt which covers the breast and/or pectoral area must be worn after 8 p.m. until 5 a.m.
— Foot protection, which may include shoes, sneakers or flip-flops that adequately protect one’s feet from wood or nails protruding from the surface of the boardwalk, must be worn at all times.
According to the mayor, who is proposing the ordinance,
We’re just trying to bring some decency to the boardwalk.
I don’t think the man knows what the word “decency” means. He keeps using that word. I don’t think it means what he thinks it means.
First, it’s not as if the saggy pants are exposing skin—it’s exposing cloth.
And how is a bare foot indecent? As I’ve said before, a bare foot exposes no more skin to public view than a flip-flop.
The think is, this sort of ban exposes the city to all sorts of legal and freedom issues. A law review article, I See London, I See France: The Constitutional Challenge to “Saggy” Pants Laws, lays it out pretty well.
There are two issues. First, there is freedom of expression, and second, there is one’s personal liberty.
It was a rather familiar experience for me to read it, since I made all the same arguments (and used many of the same citations) in my lawsuit against the Columbus Metropolitan Library.
Saggy pants law has been declared unconstitutional before, both in the city of Riviera Beach, Florida, and in the Bronx, New York. In the latter case, there wasn’t even an ordinance—they tried to get the perpetrator using a charge of “disorderly conduct”.
Look, I think it looks stupid (as do most folks my age). But looking stupid is not a crime, and we’ve all done it. Just look at this cartoon about the styles of the 1970s.
By the way, as far as I can tell, neither case above was ever appealed, and any other cases in other cities that have saggy pants laws have ever made it to the appeals stage. I suspect the cities know they are unconstitutional and just don’t fight them to the appeals level. But in the meantime they can use them to intimidate kids.
Regarding bare feet on the boardwalk, Wildwood is not the first Jersey Shore city to ban them. Both Cape May and Ocean City have such bans. For Cape May, the reason seems to be looking “normal”:
No person, either male or female, shall be attired in a bathing suit, trunks or other than usual dress on any public street or in any public place, after 7:00 p.m. and prior to 7:00 a.m. With reference to the boardwalk or promenade, usual dress includes appropriate footwear.
(I have heard reports from barefooters, though, that they have successfully navigated the Cape May boardwalk barefooted without getting arrested.)
The Ocean City boardwalk, as would the new Wildwood ordinance, uses the safety excuse:
It is unlawful to walk on the public boardwalk or on the steps or approaches thereto without shoes, sandals or other protective devices adequate to prevent injuries to the general public.
Of course, neither Ocean City nor Wildwood is concerned about preventing injuries to visitors wearing high heels that might get stuck in the cracks between the boards. Somehow it’s only bare feet that they “care” about.
Finally, when it comes to a legal challenge, bare feet have a bit more of a burden to overcome. First, there are all those “No Shirt, No Shoes, No Service” signs that make judges think it is okay to ban them. Second, they use the “protection” excuse.
Legally, as I pointed on in my lawsuit, and written about in They . . . Forgot, the historical standard was always that laws could not protect people from themselves, only from the actions of others. Even seat belt laws and motorcycle helmet laws are justified as restrictions on our freedoms in the cause of protecting others. (For seat belts they justify it by saying that the seat belt helps one control the car in an emergency, and for motorcycle helmets the claim is that they protect from rocks that might be thrown up. They also add the justification of protecting the public from medical costs.) Heck, even Michael Bloomberg’s ban on 32 ounce sodas works that way—they don’t ban you from drinking 32 ounces; they ban a store from selling such a large drink to you. It’s that one step of indirection that supposedly makes it constitutional.
When it came to my lawsuit, the judges completely forgot that (or ignored it, which is more likely).
The thing is, even in cases in which such laws have been declared unconstitutional, one can always come up with a “safety” excuse. If they don’t, it just means that the prosecutor was trying hard enough.
For instance, one famous case is DeWeese v. Town of Palm Beach, in which an ordinance requiring shirts in Palm Beach was declared unconstitutional (at the Federal Appeals level). The Court there said that Palm Beach’s justification, property values and heritage, was not proper. However, if Palm Beach had instead that it was to protect DeWeese from sunburns (and subsequent cancer), they might have won.
I can think of a similar excuse regarding saggy pants—all they have to do is say that low pants are a tripping danger. Just think of the risk! And then the saggy-tripper might sue, which could cost the city money. (This is not too far from the excuses the courts used in my barefoot lawsuits.)
Anyways, the ordinance is coming up for a vote on June 12. It’s ridiculous, for both the saggy parts and the barefoot reason. But don’t expect reason from these places.
And let me leave you with an illustration of that.
[Cartoon from here, along with a bit of commentary on the idiocy of the proposed bans.]