Breasts, the First Amendment, and Journalists Playing Telephone

On Monday, the Seattle City Council passed an ordinance to protect breastfeeding mothers from discrimination in public accommodations. The ordinance got a write-up in the Seattle Times, which contained the following description:

The ordinance will allow mothers to breast-feed at any time, place or manner, making it illegal for restaurant or store management to tell them to leave or to cover the baby with a blanket or towel.

Next thing you know, the Wall Street Journal Law Blog had picked up the story, though it chose a somewhat strange hook for its post. Under the headline “Your Right to Tell Her to Cover Up?” the WSJ viewed the issue as a First Amendment question: By making it illegal to tell someone to “cover up,” does the law constitute an unconstitutional “prior restraint” on speech?

A few thoughts on this: First, I am no First Amendment scholar, but even if the law did what the WSJ says it does (more on that below), is it a “prior restraint”? The law is not an injunction of the sort I generally consider a “prior restraint.” Rather, it’s just a law that allows for punishment after the speech has already occurred — like a prohibition on libel or threats.

Second, the basis for the WSJ First Amendment alarm seems to be the Seattle Times description of the ordinance — not the ordinance itself. The ordinance does not create a stand-alone law protecting breastfeeding with onerous speech-restricting provisions. Rather, the ordinance simply amends a general public accommodation anti-discrimination ordinance to add “breastfeeding” among the list of protected categories, alongside (among other things) race, age, sex, sexual orientation, gender identity, political ideology, the presence of any disability, or the use of a service animal.

And what about this new speech restriction? There isn’t one. All the ordinance does is add “or a mother breastfeeding her child” to the many categories of people for which the previously existing ordinance prohibits the following actions:

If those prohibitions violate the First Amendment as applied to breastfeeding then I don’t see how it would be any different as applied to persons with disabilities or any of the other individuals set forth in the general ordinance.

But my point here is not to disagree with the legal analysis of the WSJ. Rather, it’s that the legal analysis seems to be based on the summary of the ordinance printed in the Seattle Times and not, you know, the actual ordinance. Or perhaps the WSJ would also question whether it is a violation of “free speech” to prohibit a shop owner from hanging a sign reading “No Jews Allowed!” That is also “speech,” I suppose. I just think that if you are going to question the constitutionality of an ordinance you should base that analysis on the text of the ordinance, not a write-up in a newspaper.

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