Why does the ACLU care about saggy pants?

September 11, 2012

ACLU TO PROTEST SAGGY PANTS BAN- the headlines proclaimed! When the Hinds County Board of Supervisors considered banning saggy pants in public, the ACLU-MS opposed the ban and organized a protest. Our members and supporters called and emailed asking, "What's the Problem?"

Banning saggy pants in public is an affront to the Constitution and puts people at risk of being arrested for behavior that offends some people's sensibilities, but is not criminal. The impact of ordinances like the proposed saggy pants ban in Hinds County will be far reaching: it gives police the opportunity to stop and search people, even if the officers have no reason to believe they have committed any wrongdoing apart from a "fashion crime." They create misdemeanor offenses for innocent behavior, leading to a criminal record that could follow young people for the rest of their lives. Enforcement of this ban could easily lead to racial profiling, including targeting certain neighborhoods or areas, even though young people of all colors don sagging pants.

Government policy-makers have no right to dictate or influence style, nor do they have the right to protect themselves and the greater public from seeing clothing they dislike. In fact, clothing is a form of expression protected under the First and Fourteenth Amendments to the United States Constitution.
A governmental body seeking to regulate content based expressive conduct, such as wearing saggy pants, must show that asubstantial government interest exists in regulating the conduct, that the interest is unrelated to the suppression of free expression, and that the regulationactually furthers that government interest. The courts have been clear that government cannot ban speech simply because others find it distasteful. There is no evidence linking saggy pants to crime or public safety. It is true that the Constitution does not protect actual obscenities; however, while we might not like the look, the style covers as much as shorts or swim trunks would.

Banning sagging pants, or any other form of attire, also violates a liberty interest guaranteed under the Fourteenth Amendment of the U.S. Constitution. In fact, the U.S. Supreme Court found it so obvious that individuals possessed a liberty interest in their personal appearance that itassumedsuch a right to exist. The U.S. Fifth Circuit Court of Appeals affirmed this assumption. No governmental interest in banning sagging pants is sufficient to overcome this liberty interest.

We all want to see our young people grow into productive, engaged citizens, but this is not the way. Saggy pants bans will have long lasting harm in our communities. Such bans will divert precious resources from law enforcement. Let's spend those resources on education, after school activities or new text books. Rather than open doors for youth, saggy pants bans will close doors of opportunity.

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