“TopFreedom” Pushes Topless on the O.C. Beach

“TopFreedom” Pushes Topless on the O.C. Beach

I would NEVER post something about nudity just to get clicks, especially something even mildly salacious. Unless, of course, the base story does, in fact, promote the use of advocacy to change public policy. And then it’s not for clicks or kicks, just for an educational purpose.

Which, believe it or not, exactly describes today’s story about successful “Free the Nipple” (FTN) efforts to limit laws that prohibit women from going topless, while permitting men to do so. And the fact that governments are still doing it, despite FTN’s success at promoting Equal Protection challenges.

Ocean City, Maryland, is a beach town popular with D.C.-dwellers, and like many such tourism-based economies, likes to think of itself as “family-friendly.” Now, thanks to social media and a few determined activists, OC has found itself at the center of a public nudity firestorm. And, at least partially, it’s OC’s own fault.

OC has never been a nudity mecca (at least not outside of Spring Break). OC police report that most topless incidents there result from foreign tourists used to policies on other beaches. But on June 6 (ironically the anniversary of another, much more famous and important beach event), Capt. Butch Arbin, head of the Ocean City Beach Patrol, issued a memo to his lifeguards telling them (ironically again) not to approach any topless woman on the beach. Previously, the lifeguards would tell such women “Hey, you can’t do that.”

Arbin was in a tough spot. Maryland law does not define “indecent exposure” on the beach. Chelsea Covington, who runs a blog called “Breasts Are Healthy” (and just try to sort through thousands of Google listings to find that blog, but if you must, here), leads a movement called “TopFreedom.”  She prefers the term “bare-chested” to “topless,” because she feels “topless” suggests you’re missing something. She had been talking to OC officials for two years about the previous “you can’t do that” policy.

Then, last year, Covington wrote a request to the local county attorney, who in turn wrote to Maryland Attorney General, Brian Frosh, asking for a legal interpretation whether Equal Protection permits TopFreedom in Maryland.

Covington’s position, by the way, is on increasingly strong ground: In February, in Free the Nipple v. City of Ft. Collins, Colorado, Judge R. Brooke Jackson of the U.S. District Court in Colorado enjoined an emergency law prohibiting women from exposing their breasts in public for purposes other than breastfeeding. Judge Jackson wrote, inter alia, “Acknowledging that for many people prohibiting females to be topless in public remains a significant issue of personal morality, I find that such concerns are outweighed by the constitutional rights of others.” Slip Op. 11.

Frosh, being one of those typical Maryland Attorneys General who looks at higher offices as a career choice, has not issued an opinion. Hence, Arbin’s D-Day memo to lifeguards telling them not to push the issue. They should “document” the incident, but in the interests of avoiding a constitutional challenge, not approach the topless women.

Enter the media, social and mainstream. A Pittsburgh TV station reported that OC beach patrol lifeguards would no longer “scold” topless women.  PennLive reported that OC would “allow women to go topless on the beaches.” PennLive called the new policy a “hands off” approach and said “the beach patrol’s Arbin says he isn’t about to let his workers touch the topic.” OC reacted: “Despite what is being circulated on social media, the Town of Ocean City is not a topless beach and will not become a topless beach.”

On Saturday, June 10, the Ocean City Council unanimously passed an emergency ordinance — just like the City of Ft. Collins, Colorado, tried to do — and issued a general police bulletin explaining their position:

Ocean City, Maryland – (June 10, 2017): While the Worcester County States’ Attorney waits for an opinion from the Maryland Attorney General’s Office, the Ocean City Council has passed local legislation after a woman expressed her desire to be bare-chested on Ocean City’s beach.  The woman, an advocate to “normalize bare-chestedness,” believes it is her constitutional right under equal protection to be bare-chested in public.

Ocean City officials disagree. The Council met on Saturday, June 10, to pass an emergency ordinance that prohibits offenses involving public nudity or those in a state of nudity.  The ordinance states “there is no constitutional right for an individual to appear in public nude or in a state of nudity.  Whatever personal right one has to be nude or in a state of nudity that right becomes subject to government interest and regulation when one seeks to exercise it in public.”

Further, the ordinance reads, “equal protection clause does not demand that things that are different in fact be treated the same in law, nor that a government pretend there are no physiological differences between men and women.”

The council voted unanimously in favor of the emergency ordinance.

No word on next steps, though Maryland AG Frosh’s spokeswoman hopes to have an opinion issued “soon.”