Skip to main content
Part of complete coverage from

Pull up those saggy pants

By Danny Cevallos
updated 8:51 AM EDT, Mon July 28, 2014
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.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 6:10 PM EST, Mon November 24, 2014
If Obama thinks pushing out Hagel will be seen as the housecleaning many have eyed for his national security process, he'll be disappointed, says David Rothkopf.
updated 8:11 AM EST, Tue November 25, 2014
The decision by the St. Louis County prosecuting attorney to announce the Ferguson grand jury decision at night was dangerous, says Jeff Toobin.
updated 3:57 AM EST, Tue November 25, 2014
China's influence in Latin America is nothing new. Beijing has a voracious appetite for natural resources and deep pockets, says Frida Ghitis.
updated 4:51 PM EST, Mon November 24, 2014
Iranian President Hassan Rouhani speaks during a press conference in the capital Tehran on June 14, 2014.
The decision to extend the deadline for talks over Iran's nuclear program doesn't change Tehran's dubious history on the issue, writes Michael Rubin.
updated 2:25 PM EST, Fri November 21, 2014
Maria Cardona says Republicans should appreciate President Obama's executive action on immigration.
updated 7:44 AM EST, Fri November 21, 2014
Van Jones says the Hunger Games is a more sweeping critique of wealth inequality than Elizabeth Warren's speech.
updated 6:29 PM EST, Thu November 20, 2014
obama immigration
David Gergen: It's deeply troubling to grant legal safe haven to unauthorized immigrants by executive order.
updated 8:34 PM EST, Thu November 20, 2014
Charles Kaiser recalls a four-hour lunch that offered insight into the famed director's genius.
updated 3:12 PM EST, Thu November 20, 2014
The plan by President Obama to provide legal status to millions of undocumented adults living in the U.S. leaves Republicans in a political quandary.
updated 10:13 PM EST, Thu November 20, 2014
Despite criticism from those on the right, Obama's expected immigration plans won't make much difference to deportation numbers, says Ruben Navarette.
updated 8:21 PM EST, Thu November 20, 2014
As new information and accusers against Bill Cosby are brought to light, we are reminded of an unshakable feature of American life: rape culture.
updated 5:56 PM EST, Thu November 20, 2014
When black people protest against police violence in Ferguson, Missouri, they're thought of as a "mob."
updated 3:11 PM EST, Wed November 19, 2014
Lost in much of the coverage of ISIS brutality is how successful the group has been at attracting other groups, says Peter Bergen.
updated 8:45 AM EST, Wed November 19, 2014
Do recent developments mean that full legalization of pot is inevitable? Not necessarily, but one would hope so, says Jeffrey Miron.
updated 8:19 AM EST, Wed November 19, 2014
We don't know what Bill Cosby did or did not do, but these allegations should not be easily dismissed, says Leslie Morgan Steiner.
updated 10:19 AM EST, Wed November 19, 2014
Does Palestinian leader Mahmoud Abbas have the influence to bring stability to Jerusalem?
updated 12:59 PM EST, Wed November 19, 2014
Even though there are far fewer people being stopped, does continued use of "broken windows" strategy mean minorities are still the target of undue police enforcement?
updated 9:58 PM EST, Mon November 17, 2014
The truth is, we ran away from the best progressive persuasion voice in our times because the ghost of our country's original sin still haunts us, writes Cornell Belcher.
updated 4:41 PM EST, Tue November 18, 2014
Children living in the Syrian city of Aleppo watch the sky. Not for signs of winter's approach, although the cold winds are already blowing, but for barrel bombs.
updated 8:21 AM EST, Mon November 17, 2014
We're stuck in a kind of Middle East Bermuda Triangle where messy outcomes are more likely than neat solutions, says Aaron David Miller.
updated 7:16 AM EST, Mon November 17, 2014
In the midst of the fight against Islamist rebels seeking to turn the clock back, a Kurdish region in Syria has approved a law ordering equality for women. Take that, ISIS!
updated 11:07 PM EST, Sun November 16, 2014
Ruben Navarrette says President Obama would be justified in acting on his own to limit deportations
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT