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Pull up those saggy pants

By Danny Cevallos
July 28, 2014 -- Updated 1251 GMT (2051 HKT)
STORY HIGHLIGHTS
  • Danny Cevallos: Florida town passed legislation to ban sagging pants
  • He says this is one fashion statement that courts won't say should be protected
  • Cevallos: Constitution protects clothing with a specific message that will be widely understood
  • He says saggy pants don't represent a political statement

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- A Florida town has banned people -- let's face it, young people -- from wearing saggy pants.

A councilwoman for Ocala pushed for passage of the law, but the town's Mayor Kent Guinn may ultimately veto the fashion police.

If the law goes into effect, it's unclear what measuring tools the Ocala Police Department would use to determine whether citizens' pants are within the 2-inch legal limit of a theoretical waistline. It's even more unclear how they will determine where the waistline actually lies on an individual.

Danny Cevallos
Danny Cevallos

More likely than not, the Ocala PD will use the time-honored legal standard of "I know it when I see it" to eyeball the location of waistlines relative to pants lines. The not-too-subtle message is: Pull up your pants, because "2 inches" really just means "too annoying."

Why do I suggest it singles out young people? I'm not ascribing any evil motive to law enforcement. Rather, as a society, we won't expect the police to ticket a plumber crouched over at work, accidentally revealing his tighty-whiteys. We'll expect them to target teens who show underwear as a fashion statement.

So, the underlying legal question arises: Can the government even outlaw saggy pants in the first place?

It's true that the First Amendment prohibits the government from interfering with our speech -- which is the right to receive and disseminate ideas and information.

It's also true that speech need not be spoken or written. The First Amendment also protects "expressive conduct." The problem is that expressive conduct is hard to identify.

Clothing can certainly be expressive. In 1971, the Supreme Court overturned one man's conviction for wearing a jacket that said "F**k the Draft" -- but that's not really expressive conduct, because the written words constituted speech. Expressive conduct conveys an idea without words. Wearing a black armband to school to protest a war is an example of expressive conduct, and the Supreme Court has said doing so is protected speech.

Indeed, even offensive clothing, like Nazi uniforms, has been deemed expressive conduct, and the reviled Klansman robe has garnered First Amendment protections.

Clothing can be communicative, but courts require an identifiable, specific message to apply First Amendment protection. Saggy pants proponents would have to show that (1) displaying your underwear conveys an identifiable message (2) that the rest of us on the street can understand as an identifiable message.

Well, doesn't having one's pants on the ground convey ideas about comfort, personal style, and individuality? Certainly, but those are not specific enough "messages" for the courts. When you think about it, all clothing conveys those ideas. In the '80s, many of us were conveying strong ideas about acid wash jeans and shoulder pads, and in the '90s, our collective message was apparently flannel and work boots. But that's just style -- or lack thereof -- and it's not enough of a message to be protected speech.

During the 2013 trial of George Zimmerman, many took to wearing hooded sweatshirts to show support for Trayvon Martin, who was killed by Zimmerman while wearing a hoodie.

Wearing hoodies satisfies the first prong of having a particularized message, but probably fails the second. Hoodies are so popular that a court might conclude the message of solidarity is indistinguishable on the street from, say, someone wearing a hoodie to the gym. In that sense, hoodies would fail the second test, because they are not understood as speech by others.

The results feel confusing: A court would likely conclude that the clothing of a Klansman or a neo-Nazi conveys a particularized message -- an unpopular, divisive, angry message. That would entitle it to constitutional protection. But saggy pants? The message is too amorphous, so it cannot be protected speech. And if it's not protected speech, the First Amendment will not prevent towns from outlawing those droopy drawers.

Few of us like looking at people's skivvies when their jeans hang off them on the subway, but how offensive is it, really? Our culture's mores about clothing are fundamentally illogical. We attempt to outlaw this display of the top half of someone's boxers, but have no laws for that old guy at the pool -- usually the same guy glistening with suntan oil -- who prances around in nothing but a Speedo all summer. What's with that guy, anyway?

The point is that culturally, we accept nearly complete nudity in one context, but try to regulate mostly clothed conduct in another. There really is no logic to our ideas about clothing. That helps to explain horrible fashion choices from decade to decade, but does little to logically justify clothing regulations. As much as we feel free to express ourselves with apparel, we likely have less freedom of expression than we imagined.

And at least in one town in Florida, no matter how trendy your gear may be, it looks like it's time to pull up the pants.

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