According to Neil Richards, professor of law at Washington University, saggy pants laws being passed in various cities across the United States may be unconstitutional.
“Saggy pants laws form a hybrid case,” says Professor Richards. “They are regulating in terms of indecent exposure but seem to be directed at the expression of identity through clothing.” He points out that the law belongs to a group of regulations that attempt to prevent people from having their feelings hurt by the dress of other people, and that these types of laws “tend to do very poorly when subject to First Amendment analysis.”
Saggy pants laws ban pants that are worn three inches below the belt, or pants that reveal too much underwear or the wearer’s skin.
To date laws have been passed or considered in eight states.
- Wildwood, NJ. The law was passed in June 2013. It bans saggy pants on the boardwalk. The fine is $25-$100 for first-time offenders, and up to $200 for repeat offenders, who could also get 40 hours of community work. In addition the law bans being shirtless after eight pm on the boardwalk, and wearing blouses and skirts that are too revealing. It also bans walking barefoot at any time.
- St. Louis, Missouri is voting on a similar law this month (August 2013)
- Miami, Florida. Declared unconstitutional in September 2008. This law resulted in a 17-year-old youth being jailed for one night, and subsequently released when Palm Beach Circuit Judge Paul Moyle found the regulation unconstitutional.
- Collinsville, Ill. Passed by city council in July 2011.
- Terrebonne Parish, Louisiana. Passed April 2013. The local NAACP’s president, Jerome Boykin, said he actually approved of the law, claiming it is not directed at blacks. “Young men who were in prison who wanted to have sex with other men would send a signal to another man with his pants below his waist,” he said.
- Chicago schools banned the fashion. This is one area where laws have been upheld since they are aimed at enhancing the educational environment, something government is traditionally allowed to do.
- Delcambre, Louisiana. Outlawed since June 11, 2007. See NYT, 8/30/07. “Are Your Jeans Sagging? Go Directly to Jail” by Niko Koppel.
- Shreveport, Louisiana. Outlawed since September 15, 2007. See NYT, 8/30/07. “Are Your Jeans Sagging? Go Directly to Jail” by Niko Koppel.
- Moultrie, Georgia. The law was called ridiculous by Anderson Cooper.
- Ocean City, New Jersey, decided not to adopt a saggy pants law after it appeared to be susceptible to an Equal Protection challenge.
- Bronx, NY. In July 2013 a Bronx man was issued a summons by a police officer for wearing saggy pants. Judge Ruben Franco ruled that the summons should have no force or effect since New York has no law against saggy pants.
- Atlanta, Georgia. Considered a law as early as 2007.
- Stratford, Connecticut. A proposed ordinance was rejected by the Town Council because they thought it might be unconstitutional. See NYT, 8/30/07. “Are Your Jeans Sagging? Go Directly to Jail” by Niko Koppel.
The law has been criticized as racist by civil libertarian groups and by black rappers and hip-hop artists. One constitutional challenge is that the law is too vague and could wind up prohibiting things it was not intended to prohibit. The American Civil Liberties Union usually challenges such laws as violations of the 14th Amendment’s Equal Protection clause. That clause can be used to argue that the law discriminates against blacks and does not treat them equally. The NJ chapter of the ACLU is particularly critical of the law.
The law also appears to violate the First Amendment, which has been interpreted to allow the right of self-expression. According to Professor Richards, First Amendment challenges may or may not work in various jurisdictions because the government sometimes succeeds in regulating indecent exposure. “I’d be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine,” he said.
A similar law was struck down in 2008 in Florida.
“I am with the sagging movement,” says The Game, a rap artist. He offered to pay the fine of the first five people convicted under the Wildwood, New Jersey, law.
Wildwood Mayor Ernesto Troiano is in favor of the law. “I find it offensive when a guy’s butt is hanging out,” he said.
The style is believed to have originated in prison, where belts are outlawed to reduce violence and suicide. Rappers and hip-hop musicians popularized the look in music videos. Teens of both sexes have picked up the style and can be seen wearing this style today. I saw it in the Bronx this year and last year. At first I thought the young black man was unaware that his pants was falling down. Later, I learned that it was a fashion statement.
As an image consultant, I can tell you that we have never recommended this style to any of our professional clients.
Do we believe that a law should prohibit it? Certainly not. It is a form of self-expression, popular with some youths today, especially the black and disenfranchised populations. But senile old men can always use the saggy pants style as an excuse if their pants starts to fall down. “I’m in fashion,” they can argue. And who can say they’re not?