Texas Federal Judge Tackles Itsy Bitsy Bikinis

Federal Judge Tackles Bikini Case

Federal judge a fan of this venerable exotic dancer.

Chief U.S. District Court Judge Fred Biery, W.D. Tex, had a great time writing a preliminary injunction order in a case in which the City of San Antonio passed an ordinance regulating topless dancers, including requiring them to wear more clothes. How much fun did he have?  The title of the order gives a good clue:

“The Case of the Itsy Bitsy Teeny Weeny Bikini Top v. The (More) Itsy Bitsy Teeny Weeny Pastie,” with a footnote to—you guessed it—the novelty hit, Itsy Bitsy Teeny Weeny Yellow Polka Dot Bikini (Knapp Records 1960). The order is a combination of lame sexually oriented wordplay and thoughtful analysis. Here are two sample paragraphs of the former (underline added):

An ordinance dealing with semi-nude dancers has once again fallen on the Court’s lap. The City of San Antonio (“City”) wants exotic dancers employed by Plaintiffs to wear larger pieces of fabric to cover more of the female breast. Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?

The Court infers Plaintiffs fear enforcement of the ordinance would strip them of their Profits, adversely impacting their bottom line. Conversely, the City asserts these businesses contribute to reduced property values, violent crime, increased drug sales, prostitution and other sex crimes, and therefore need to be girdled more tightly.  Plaintiffs, and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of City government.

The order then veers into hyper-weirdland, explaining that while no amicus curiae briefs had been filed, the court had the benefit of input from volunteer “curious amigos” who performed on-site inspections. Judge Biery advises the volunteers “they would have enjoyed far more the sight of Miss Wiggles, truly an exotic artist of physical self expression even into her eighties, when she performed fully clothed in the 1960s at San Antonio’s Eastwood Country Club.” He even includes a picture of Miss Wiggles.  Er, thanks for that, Judge.

Things settle down at that point with an analysis of the request for preliminary injunction by the plaintiff club owners, pitting the government’s interests in reducing crime and protecting property values against the First Amendment.  Under the law, the club owners can get a license and let their dancers wear pasties or operate without a license and make them wear bikini tops.

Judge Biery wasn’t convinced female breasts were the cause of the government’s asserted ills, saying  he “doubts several square inches of fabric will stanch the flow of violence and other secondary effects emanating from these businesses” and speculating that “[a]lcohol, drugs, testosterone, guns and knives are more likely the causative agents.”

But he denied the preliminary injunction because the law does not require the government to prove causation in this instance, ending with more provocative wordplay (“Should the parties choose to string this case out to trial on the merits, the court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.”)

(Postscript: A student sent me this, but many other sources have publicized this order, including Above the Law and the ABA Journal.)

35 Bar and Grille v San Antonio, 35 Bar & Grille, LLC, et al. v. City of San Antonio, Civil Action No. SA-13-CA34-FB (W.D. Tex., Apr. 29, 2013) (Biery, J.)

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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