Hillbilly Hotties. Java Juggs. Twin Peaks. Dreamgirls Espresso. If you haven’t been following the “Bikini Barista” trend over the past decade, the names of Pacific Northwest establishments offering drive-thru coffee “with a view” may leave you wondering whether they are cafes or strip clubs. And city officials in Everett, Washington contend there was little difference, justifying a Dress Code Ordinance requiring employees, owners, and operators of Quick-Service facilities to cover “minimum body areas.”

The owner and employees of one such stand fought the law, but the law won (for now). The U.S. Ninth Circuit Court of Appeals removed an injunction blocking the law from being enforced, ruling that the bikini baristas were unlikely to prevail on their First Amendment claims.

Is Near-Nudity Free Speech?

Interestingly, nude dancing and erotic performances are considered expressive conduct protected by the First Amendment. But the “nearly nude employees” didn’t take that tack as part of their argument. Instead, they contended that their dress (or lack thereof) was a message of empowerment, an claim the Ninth Circuit judges found less than convincing. “Because plaintiffs have not demonstrated a ‘great likelihood’ that their intended messages related to empowerment and confidence will be understood by those who view them,” the court wrote, “we conclude that the mode of dress at issue in this case is not sufficiently communicative to merit First Amendment protection.” They continued:

What Are We Talking About?

Everett also updated its “Lewd Conduct” ordinance, which led to some interesting discussion amongst the judges regarding a lower district court decision:

Great.

Now that we’re all on the same page, there’s just one place left for the bikini baristas to turn: The Supreme Court.

Related Resources:

  • 9th Circuit Rules Against Bikini Baristas (ABA)
  • ‘Bikini Baristas’ Too Hot for Wash. Town? (FindLaw’s Free Enterprise)
  • ‘Bikini Baristas’ Argue Freedom of Exposure (FindLaw’s U.S. Ninth Circuit Blog)
  • ‘Bikini Barista’ Acquitted, Yakima Coffee Shop Owner Guilty (FindLaw’s Decided)

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