Edge v. City of Everett

The panel vacated the district court’s preliminary injunction against enforcement of the City of Everett, Washington’s Dress Code Ordinance—requiring that the dress of employees, owners, and operators of Quick-Service facilities cover “minimumbody areas”—and the amendments to the Lewd Conduct Ordinances.

Plaintiffs are owners and employees of a bikini barista stand in Everett, Washington.

The panel held that plaintiffs did not show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim.

Concerning the Lewd Conduct Ordinances, which expanded the definition of “lewd act” and also created the misdemeanor offense of Facilitating Lewd Conduct, the panel held that the activity the Lewd Contact Amendments prohibited was reasonably ascertainable to a person of ordinary intelligence. The panel also held that the Amendments were not amenable to unchecked law enforcement discretion. The panel concluded that the district court abused its discretion by holding that the plaintiffs were likely to succeed on the merits of their void-for-vagueness challenge to the Amendments.

Concerning enjoinment of the enforcement of the Dress Code Ordinance, the panel held that the vagueness principles governing the panel’s analysis of the Lewd Conduct Amendments applied with equal force to the Dress Code Ordinance. The panel concluded that the vagueness doctrine did not warrant an injunction prohibiting enforcement of the Dress Code Ordinance. As to plaintiffs’ First Amendment contention that the act of wearing almost no clothing while serving coffee in a retail establishment constituted speech, the panel held that plaintiffs had not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence would be understood by those who view them. The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection. The panel also held that the district court’s application of intermediate scrutiny under the “secondary effects” line of authority was inapposite, and the City need only demonstrate that the Dress Code Ordinance promoted a substantial government interest that would be achieved less effectively absent the regulation. Because the district court did not analyze the ordinance under this framework, the panel vacated the preliminary injunction and remanded for further proceedings.

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