While Covington council members seem to unanimously dislike the practice of people wearing pants that sag below their waists, they were divided on whether the city should seek to outlaw the practice through an ordinance.
The discussion came up at Wednesday's work session, following a memo sent by Assistant City Attorney Frank Turner Jr. that outlined how a potential challenge to an ordinance could play out.
In summary, Turner wrote that an ordinance that doesn't allow pants to be worn more than three inches below the waist such that undergarments are exposed could be challenged as unconstitutional if it is found to unfairly violate a wearer's First Amendment rights by limiting "expressive conduct."
"The definition of protected "free speech" goes far beyond verbal speech and includes non-verbal "expressive conduct" (i.e. burning a flag, destroying a draft card, etc.). If challenged in state or federal court, the court would review the language of the ordinance, the council's reason for enactment and the particular facts of the case surrounding the particular violation of the ordinance," Turner wrote in a memo.
First Amendment rights can still be regulated, but only if there is "important or substantial state interest in regulating the secondary effects of the regulated conduct."
"If challenged, the city would have to produce evidence that: (1) wearing baggy pants results in negative secondary effects on the community, (2) reducing those negative secondary effects is important and (3) regulating free speech rights is related to reducing those negative secondary effects. Cases where the Courts have found that there is a substantial government interest in regulating morality usually involves obscenity or nudity. This ordinance prohibits the showing of underwear under baggy pants. Yet the City would not prohibit the wearing of swimsuits, which provide approximately the same coverage as underwear," Turner wrote.
"Further, the U.S. Supreme Court has ruled that the government cannot regulate "expressive conduct" because it "desires to protect the sensibility of passersby...In summary, I believe it is unlikely, in most instances, that a court would find that wearing baggy pants constitutes constitutionally protected expressive conduct. However, if a court finds that wearing baggy pants did constitute expressive conduct (and under some factual circumstances it could), then the courts would more than likely invalidate the ordinance as denying a First Amendment protection."
Porterdale recently abandoned its efforts to pass a similar ordinance, deciding to let the issue play out in the courts elsewhere.
Mayor Ronnie Johnston said that after reading the memo he thought it might not be the best issue for the city to bite off.
Councilman Chris Smith, who asked for an ordinance to be explored, said Wednesday he had not yet had a chance to review Turner's memo.
Councilwoman Hawnethia Williams said she didn't like sagging pants, but said such an ordinance could easily be seen as racial profiling. Smith said he sees both races wearing saggy pants, but Williams said it would be difficult for Smith to see things from her perspective.
Councilman Keith Dalton said he believed it was more an age issue than a race issue.
Smith said he was trying to clean up the appearance and perception of the city, but Williams said she felt the issue would be divisive. Councilwoman Ocie Franklin said she hoped saggy pants were a fad that would eventually go out of style.
Johnston said the issue was put into a different perspective by a woman who asked if the city would try to outlaw cleavage next.