Constitutional Underpants

A Florida judge has proclaimed a constitutional right to show your under drawers in public.

A US youngster wearing his pants half-mast. A Florida judge has deemed unconstitutional a law banning baggy pants that show off the wearer\'s underwear, local media reported Tuesday. (AFP/File/Tim Sloan)A Florida judge has deemed unconstitutional a law banning baggy pants that show off the wearer’s underwear, local media reported Tuesday.

A 17-year-old spent a night in jail last week after police arrested him for wearing low pants in Riviera Beach, southeast Florida.  The law banning so-called “saggy pants” was approved by city voters in March after supporters of the bill collected nearly 5,000 signatures to put the measure on the ballot.  The teen would have received a 150 dollars fine or community service, but he spent the night in jail due to a history of marijuana use, the Palm Beach Post newspaper said.

“Somebody help me,” said Palm Beach Circuit Judge Paul Moyle, before giving his decision. “We’re not talking about exposure of buttocks. No! We’re talking about someone who has on pants whose underwear are apparently visible to a police officer who then makes an arrest and the basis is he’s then held overnight, no bond.”

I don’t have a copy of the written opinion, if there even is one, but it seems that Moyle is confusing the constitution with his sense of what a good law looks like.

Now, I happen to agree that municipalities have no business regulating fashion choices and that the harm to the public from seeing the upper portion of someone’s skivvies is too minimal to warrent regulation, let alone the expenditure of state resources to enforce.   But precisely what provision of the Florida Constitutions  guarantees the right to show off your BVDs?  Is this emanating from a penumbra somewhere or what?

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Rick Almeida says:

    Secion 2 of the Florida Constitution (“Basic Rights”) includes “the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property.”

    IANAL, but it does seem like one’s dress, to the extent that it doesn’t violate obscenity laws, entails enjoying life, pursuing happiness, and possessing property.

    Am I off base here?

  2. sam says:

    But precisely what provision of the Florida Constitutions guarantees the right to show off your BVDs?

    Hmmm. I suppose we could flip the question:

    But precisely what provision of the Florida Constitution authorizes a Florida municipality to prevent you showing off your BVDs?

  3. James Joyner says:

    I suppose we could flip the question

    I think that’s the right attitude when looking at Federal power. Historically, though, states and municipalities have the presumptive power to regulate pretty much anything except where the U.S. or state constitution specifically denies them that power.

    So, a local community can tell kids when they have to be off the streets, regulate the haircuts of schoolchildren, forbid you from carrying an open container of beer, require you to get a permit to perform electrical work in your own house, etc., etc., etc.

  4. Billy says:

    Having no idea on what grounds the judge ruled, here, on these kinds of laws are probably facially unconstitutional for vagueness and the propensity of law enforcement to be selective in their application (this would be a emanation of those penumbrae of “due process” and “equal protection’ you might have heard some courts cite).

    When it comes to open containers, a reasonable person knows at least what he is barred from doing, and such restrictions are generally applied to all individuals acting in a like manner. In this case, whether the ordinance is violated is dependent upon the wholly subjective view of law enforcement who are thereby granted plenary authority to decide what conduct is barred and what is not. That, James, is what is unconstitutional.

  5. Even standard “police powers” legislation is subject to the rational basis test, at least in federal law.

    That said I’m having trouble distinguishing a law against baggy jeans from a zoning ordinance that forbids you from painting your house fluorescent yellow. Both are arguably public nuisances, and that satisfies the RBT.

  6. While I think that wearing baggy pants that show one’s underwear is silly, so to is trying to legislate against youthful nonsense.

    What if, for example, instead of wearing boxers I wear colored track shorts with my baggy jeans, is that a violation?

  7. Fence says:

    Historically, though, states and municipalities have the presumptive power to regulate pretty much anything except where the U.S. or state constitution specifically denies them that power.

    James, you seem to be looking at this issue as if you were a federal judge. A Florida judge can do whatever the people of Florida have vested in the Florida courts to do.

    The federal government is indeed supposed to look at states they way you describe, because the federal government was created later, by the states. But states and localities aren’t born with power, the view I prefer to take is that they have only the powers that have been given to them by the people.

    I shouldn’t go any further since I don’t know the applicable law, but just for fun . . . I wonder if it would have violated the law at issue to walk around only in your underwear? How does one legally distinguish boxers from shorts? Or could you violate it only by putting the pants on, but not high enough? And what happens if localities start adopting all sorts of unique laws re appropriate dress, how is a traveler to keep up with them?

  8. PD Shaw says:

    Having no idea on what grounds the judge ruled, here, on these kinds of laws are probably facially unconstitutional for vagueness

    That was my thinking as well. The first clue is that the law arose from a voter-initiative referendum. These are notoriously written poorly.

  9. PD Shaw says:

    Historically, though, states and municipalities have the presumptive power to regulate pretty much anything except where the U.S. or state constitution specifically denies them that power.

    States, yes. I disagree on municipalities. Historically most municipalities are subject to Dillon’s rule — they have no inherent powers, but only the authority given them by the State. According to the following link though, it is not clear whether Florida follows Dillon’s rule.

    Dillon’s Rule

  10. Michael says:

    What if, for example, instead of wearing boxers I wear colored track shorts with my baggy jeans, is that a violation?

    It gets even more complicated than that. The new trend seems to be to wear a “private” undergarment under your “public” undergarment. Indeed, it seems an entire industry is cropping up to supply undergarments as fashion accessories and not as undergarments. So, legally, what is the difference between shorts and underpants, if both are being worn the same way?

  11. sam says:

    I guess, James. But I think the PD in the case had it right: It’s like a Monty Python skit.

    Idle (Judge): What is the charge?

    Cleese (QC): M’lud, the defendant was showing his knickers in public.

    Idle: How say the defense?

    Palin (the other one) of the Bailey: M’lud, my client’s knickers are none of the city’s business.

    Idle: What does the defendant have to say for himself?

    Gilliam (defendant, affecting an English accent): I paid 10 quid for me knickers.

    Cleese: Objection. The price of defendant’s knickers is not at issue.

    Idle (ignores Cleese): 10 quid? (stands up, drops trow) I paid 30 for these.

    Palin: Crikey! You were taken M’lud. (stands up, drops trow, has same knickers as the judge.) I only paid 20.

    Cleese: God’s truth! (drops trow, has same knickers) I paid 25 for these.

    [All three look pointedly at Gilliam. He slowly rises and drops trow, has same knickers as the others.]

    Idle: Counsel and QC will approach the bar. [Palin and Cleese shuffle up to the judge, pants around their ankles. Murmured conversation. They shuffle back to their places.]

    Idle: Defendant is fined 45 pounds payable in cash to the court (Cleese and Palin nod in agreement) and is remanded to custody pending shopping trip to wherever he got his knickers for 10 pounds. Next case.

  12. Mithras says:

    Is this emanating from a penumbra somewhere or what?

    The right to wear what one chooses is squarely within the freedom of expression guaranteed by the First Amendment to the U.S. constitution and Section 4 of the Florida constitution. No penumbras or emanations needed.

  13. Mithras says:

    sam wins the thread.

  14. Steve Verdon says:

    Just so long as they don’t ban the whale tail I’m good.

    Oh yeah, probably not safe for work.

  15. I cannot believe that grown men are discussing whether a person can show their underwear or not.
    Sheesh.
    Go to the beach and look at the standards for indecency and then tell me it is wrong to show your underwear when you have pants and shirts on,too. Any lawyer worth his car can argue this one.

  16. Joe says:

    Embracing different cultures, however they choose to define themselves, is a necessary part of the law. Each culture and subculture has their own way of expression and identification, and if the legislatures of each state feel comfortable regulating pants length, then they may also feel comfortable regulating the length of women’s skirts, the color of people’s clothing and so on.

  17. Eneils Bailey says:

    I think the ruling is right.

    Legally, while you may not like the social behavior, is should not be punished as a crime.

    Socially, and for their economic future, this type of dress and behavior is easily rejected.

    As I once told my neighbor’s son, who was a junior in college; that lizard tattoo on your neck is a real attention-getter in college, but serves very little purpose on your first job interview.

  18. While I’m sure this is not always the case, I knew several people who wore two pairs of underpants for this trend: a white cotton pair, and a “show” pair over top of them. The white cotton were adjusted for comfort and function (i.e. keeping things where they belong), while the outer pair – usually a bright and colorful pattern on a synthetic material – had the waistband pulled up higher for more visibility.