the court this case is about a public protest on public property on a matter of public concern sunoco to gummi participated in a protest against the city of chicago's public indecency law that law bars women but not men exposure to this part of the female body like my can't this be resolved on the pleadings that the case that i think you're asking about would be a general challenge to public indecency laws period that plaintiff in this case is not seeking a right to feel nude in public full stop what the the application of the law to play the pretense has to be justified just to her on the day that she was protesting so that the general justification that supports public indecency laws is not being challenge that because there is this expressive conduct as part of a protest there is a harder look for the city to justify it under the first amendment what remedy arab speaking i whether on the pleadings now or in a more detailed record later that the city has a legitimate interest in protecting unwilling viewers from  e go topless protest activity at certain times in places she would still have an argument that if the court on a for the record or on the  that there was a sufficient substantial interest the next question be whether there's a connection between enforcing the law against mr ghani and that substantial interest and that's where we want to develop facts about whether the law is in force about whether the law covers contemporary dress by having this or the strange language about below the upper edge of the area law and it's also where we want to develop factual records about the laws that protect the right to breastfeed and so that's where we would say that even accepting there is this substantial interest there's no connection to it to there's no connection to furthering that interest because of these other facts that we want to develop and evidence we want to show to disprove the furtherance aspect of that joint return to the question i mean i'm not i'm not entirely sure i understood your answer to your drover are you and are you attempting to make an argument that there was an equal in force of this ordinance that is that what it has been in force differentially against people who are engaged in forms of protest the evidence that we want to develop is that the answer my question is yes or no and then you can expand the answer is yes that we want to develop that the enforcement of the law is an equal and that i didn't see that argument in your brief  missed that was the principal thing i look for in your brief i could certainly understand an argument to say chicago enforces this ordinance only when people are protesting but when a woman w of chicago the ordinance is not forced because there is no politics involved there i just didn't see that argument in your brief well that exact argument i don't think is  good i think is one that that may arise as we develop the facts about whether if you want a case reversed for some reason you have to make the argument in your brief well ok and i'll tell you the argument i missed something in your bri so we have not made an argument about enforcement against first amendment activity versus non expressive conduct to the argument that we have made which is i believe related to that and maybe maybe the nearly the same is that the ordinance itself bans contemporary fashions and yeah well that may be stupid but there's a huge category of stupid constitutional argument ordinances well i think it's harder for those stupid because you are going to survive and they're being challenged on the first amendment that the other argument that we've made about enforcement which is at the kind of argument i was concerned about to show there's only partial enforcement even during protests it's not to say that the city is discriminating against protesters and i understand that the way that the way that we the way that i will contend that we have come close to the argument you're raising is that by saying that the law bars contemporary fashions and is not in it we are saying that it's not forced against those contemporary fashions that we believe the evidence is going to show that a great number of women wearing swimsuits on chicago beaches are in violation of the text of this ordinance and i don't believe we're going to find any tickets against those women well this gets to the question i was raising about the issue of remedy i understood your suit to seek official remedy declaring this part of the city's indecent exposure so ordinance unconstitutional you're not seeking an as applied manatee that is that it's just invalid an unenforceable as applied to protest related conduct of this sort but the complaint in both the complaint invoked both requests for relief we are not contending now that we have a right to an injunction against the ordinance that our first amendment rights believe the plaintiff the title or not you are not limiting your argument to the protest context i mean this is this is under the demand that we are but you're right there is that there's a broader challenge and legal protection clause that the unequal treatment of women under the ordinance addressed somewhat similar and as we distinguish those based on a lot of them involves secondary effects a lot of them involve the developed factual record and i think that they didn't involve the same kind of arguments about enforcement and about the breastfeeding laws that we're seeking to raise in this case to return the question about a declaration that that would be a precursor to receiving damages for a violation equal protection that on the record we've presented on the facts today she doesn't have a plane ticket to come back to chicago and protest again so so we don't have a right to that we're not seeking it but judge over the other question we're talking about  earlier that new york yankees i believe that's the name of the case from new york here and hope and i and i don't want to say that that case adopted the argument that plane of this putting forward on the equal protection my understanding is that my my recollection of the case is that it to avoid a constitutional problem it adopted that and ducked interpretation of new york's law that allowed women to appear topless in new york str facts to support its justification that's why there's a secondary effects justification for exotic dancing establishments behind closed doors now on the public street well our architecture is that the same rule that they're asking us asking to rule and common sense and they're asking that the plaintiff be held to a higher burden of explaining why these justification which the city is the one has to come forward with  insufficient and it's impossible for the plaintiff to negate those that the best example is that we didn't see the city's interpretation of the misfortune and until the brief on appeal and in the district court there is no possible way that we could have anticipated this new interpretation that wasn't presented to us until we were here on the appeal for example but also to show that she can overcome the city's defenses and other words if this city bear the burden of articulating a legitimate justification for the ordinance why  can she know in advance what specific rationale the city will decide to articulate to justify the ordinance how can she know this well that would be established by the supreme court's decision and bards barnes of the the supreme court observers that it was impossible on the evidence to determine what the state of indiana as with what the justification for the public nudity ordinance at issue there was but said it could nevertheless be resolved on the basis of historical fact the common tools of interpretive statute for purpose the language and language of the statute and history and the court said this is justified by a government's interest in morality and public order there is nothing difficult at all to  a justification that the united states supreme court has recognized has existed since before this country was founded to gummy chose not to come for with facts of that and given that there is an established rationale that has been affirmative defenses we do not contest that in the slightest but the o'brian these elements are part of a first amendment claim and even the cases that got me cites those cases know that in an individual who's coming forward asking to change the status quo has an obligation to come forward with to plead facts showing that the status quo needs to be changed and we're not asking a lot we're just asking for a reason up front for notice just basic notice not a painfully detailed statement just some fact showing why to go army believes that either the city's you ordinance is particularly unique that it doesn't doesn't match up with the old the statute issue and barnes for instance or any of the other such statute or ordinances or that something has changed that she believes something is changed we're not asking for a lot and we want to make clear that we're not trying to impose a heighten or just some slow look of fact your challenge unless someone else has something they would prefer you to go forward on but my question is why why is this a factual issue at all given the state of the  ordinances of this type and laws of this type have been routinely upheld as a legal matter and let that legal pedigree it seems to me it's not a factual question at all we would actually agree on and we have directly addressed the pleading issue because god he was coming forward with what seemed like an extraordinary request that the city be required to respond to a motion to dismiss to dismiss with evidence specifically requiring evidence be brought forward it's not even clear how that would be done but we believe that this case could be resolved without even touching on that issue because as you as you note there is a long pedigree of case law both in the first amendment context and in the equal protection context rejecting the exact kind of challenge to god he brings here starting with the first mehmet challenge barnes explicitly accepted that and ordered a law similar to a law against public nudity at dances the government's interests in morality public order avoiding unwilling viewership of public nudity right and where that's the justification there is no need for evidence the court has sanctioned it as an valid exercise of the police powers notwithstanding the first amendment correct in that and that we believe that would end the case as well as the fact without touching on ebay entry questions as well as with the fact that as this court is a has as this court recognized in foxy ladies as was recognized in city of erie by the supreme court as has been recognized in numerous cases that nudity is not inherently expressive and there's just no need to go into the o'brien test at all absent inherent expressiveness it's not clear that the to get to me is trying to claim that public nudity is inherently expressive that i apologize it's not clear from that i don't believe she is but even if she were that's been so thoroughly rejected that this court could simply rely on the case law to reject that and that would be the end of the first minute claim right there the mere fact that a protest is accompanying that conduct that that's that argument runs headlong into o'brian itself that was the observation the supreme court made in bars that there was a protest going on around it but that didn't change things that doesn't make non inherently expressive conduct into inherently expressive conduct and rumsfeld followed up on that rejecting the fair's argument that they're wired for a nationwide protest against military  question turns into leads directly into rumsfeld which made it clear that accompanying spy company conduct with speech accompanying contact with a protest in that case is not enough because the conduct itself the city concluded that parades are have such a long history of use as a matter of expressing messages of some kind doesn't have to be a particular message but they've long been used for that purpose that a parade a march i don't believe there is any difference of first amendment in part between the two would be protected but just surrounding conduct undisputedly conduct the city of merely restricts public nudity there is no requirement that of any kind other than that that you not be nude in public merely holding up a sign or explaining what you're doing as rumsfeld explained not only doesn't transform conduct into inherently expressive conduct it's strong evidence that the conduct itself was not inherently expressive because it needed to be explained and that's true but people are saying we shouldn't normally protest as you're saying but there are signs  meaning that transcends those you know that that goes beyond just that moment it's not those immediate circumstances otherwise everything could be true every bit of conduct of the court pointed out the tax code for instance could be turned into a first amendment issue by a person saying me and my friends we don't like the tax code we're going to protest it now you have to decide whether the tax code is narrow is meets all the o'brian factors and that's just simply not it just can't be reconciled with rumsfeld and if there is going to be exception it's with respect as for the supreme court to draw the exception i believe rumsfeld eliminates the surrounding speech argument that got me tries to raise here  turning to the to the equal protection claim it would also argue that as with the first amendment claim there's no need for evidentiary findings the again as as your author observed there's a long pedigree as one case of observed equal protection challenges to public nudity ordinances on this ground have been universally the language of the court universally rejected and we cite well numerous cases in our explain how this is not a sex based classification both men and women have breas and as the cases have yet we cite the buchanan case we cite the sex case eckel a number of cases of recognize that they are that there are legitimate recognizable differences between male breasts and female breasts that beginning in the nineteen thirty c however attitudes changed the prohibitions fall away so it hasn't always been true that male and female breaths work were perceived differently and at nice to breastfeeding mothers there's been some recent change in time public attitude toward the expenses female breast so why then is her equal protection claim or a right for resolution on the complaint alone the ordinance plainly treats men and women differently in this regard with respect your honor it is not treatment at sorry that the you you cut out for that and that should we have a developed record no your honor we there is there is no need for a developed record on this point because first there there isn't differential treatment if the city had come forth act an ordinance that said simply all individuals must cover their intimate erogenous areas it would apply the same way a number of states and their criminal codes even have done exactly that ohio's criminal code for instance  addresses intimate areas and lists of central of the same elements of the city the same body parts the city has including the feet specifically female breast that's not a differential rule that's just a it was a different way of phrasing but it turns into semantics and second as we note number of cases and we believe it's a direct result from barmes have recognized that the that such laws advance an important governmental interest and that's that is settled law in this in this nation and numerous courts the fourth circuit for instance mr comey tries to distinguish cases from other circuits and say that they're addressing different issues before service decision was a was an individual attempting to topple a woman attempting to topple a sunbathe in a state park and order a federal regulation incorporated local ordinance those virtually identical to the cities and the fourth circuit held that that that was an easy easy equal protection claim to resolve because that that regulation advanced a legit a substantial government interest even if it were considered discriminatory in some way than just assume that nothing has changed in how the female breast is perceived mr gummy has come forward with no allegations to indicate that these perceptions have changed on a level that would make any constitutional significance in fact the district court dismissed this claim on that ground that she pled no she offered no well founded factual allegations on the subject on these on these broad allegations she hoped to make  message and when an observer would know that a message is being communicated and or tension is that based on the pleadings to mr thomas performer she met that standard and for the same reason that the court has applied first amendment protection to new dancing and also to nudity as part of film or theatrical performance just the mere presence of nudity here doesn't take us out of the first amendment you know we pointed to this court statement in the brant case that parading in public wearing no clothing at all depending on the circumstances convey a political message and the point really is that this is a case under the first amendment about a protest and it's a case about expressing views in the way that mr gandhi wanted to express those views that there's this case the sha and in that case the court held that the government could not a grand last book citizens the community for creative nonviolence mosque the sleeping in the park case in the sleeping the park ace i think has a problem about whether it's expression and talking about the shack case justices didn't ask whether you're effectively whether your theory shouldn't be differential in forstmann that the laws enforced when expression is ongoing and not in force otherwise that would really be a traditional first amendment claim well and i and we did talk about the before and i put forth a position i have of how that is raised what i will say about o'brian is there's a separate interest in protecting the parks and in order and and here there's this conclusory use of public order and more about the supreme court didn't require any proof about the interest in protecting the parks i mean i think a lot of cases that enough that this was content neutral regulation it applied whether somebody wanted to protest by sleeping in the parks were just to sleep in the park and and i think that we the evidence in this you after that is that i believe that argument is within our argument about the contemporary fashions and i believe that's the same thing about lack of enforcement it's not the same thing somebody wearing a deeply cut down at the lyric opera is not engaged in protest