November 2021 - Parks & Recreation - 32

LAW REVIEW
court found " protecting public sensibilities
serves an important basis
for government action. "
As cited by Plaintiffs, " perceived
public moral sensibilities have been
used to justify government action
that we now recognize to be unconstitutional
if not outright immoral. "
The federal appeals court
acknowledged: " The judicial legacy
of justifying laws on the basis of
the perceived moral sensibilities of
the public is far from spotless. " The
court further recognized: " Some
government action that we now
rightly view as unconstitutional, if
not immoral, has been justified on
that basis. "
Citing precedent, the court
found there was no legal
requirement that " a municipality
empirically prove the public
sensibilities of a community. "
Consistent with the
precedent
set by " the majority of courts that
have addressed the issue, " the federal
appeals court in this particular
instance found " no error in the district
court's determination that the
provision in the Ordinance prohibiting
the public showing of female
breasts furthers the important governmental
interest of protecting the
public sensibilities. "
Public Sensibilities
Evidence
On appeal, Plaintiffs contended
Ocean City had " not established
that the Ordinance is substantially
related to protecting the public sensibilities
of Ocean City residents
and vacationers. " The federal appeals
court rejected this argument.
32 Parks & Recreation | NOVEMBER 2 0 2 1
As noted by the court, Ocean
City had " presented
testimonial
and documentary evidence that
demonstrated Ocean City residents
and vacationers overwhelmingly
supported the Ordinance " :
The vast majority of the
emails in the record favor the Ordinance.
And Meehan, Knight
and Pursel all testified that they
had
received
communications
from residents and vacationers
supporting it as well.
In response, Plaintiffs claimed
Ocean City's evidence was " not
illustrative of the views of Ocean
City because its population is transient
due to tourism. " The court,
however, found many of the emails
sent to Mayor Meehan reflected the
view of residents as well as " tourists
who indicated that they would not
vacation in Ocean City if public female
toplessness was allowed. "
Plaintiffs also argued " the testimony
of Ocean City's leaders
who expressed their opinions on
the public sensibilities concerning
female toplessness lacks sufficient
scientific
basis. " In particular,
Plaintiffs claimed " Ocean City officials
did not save all emails related
to the Ordinance " and did not
record the " names of the people
who complained by telephone or in
person. " The federal appeals court
rejected this claim.
Citing precedent, the court found
there was no legal requirement that
" a municipality empirically prove
the public sensibilities of a community. "
Accordingly, in this particular
instance, the federal appeals
court concluded there was sufficient
evidence to " show that the
Ordinance is substantially related
to this important governmental interest. "
Specifically, the federal ap|
PARK S ANDRECRE AT ION . OR G
peals court determined: " The district
court rightly held that Ocean
City's leaders could offer testimony
as fact witnesses giving lay opinions
about the moral sensibilities
of
the Ocean City community
based on their personal community
interactions, including those interactions
as elected officials. "
Irrelevant Expert Testimony
On appeal, Plaintiffs further contended
" the district court erred by
excluding Dr. Herbenick's expert
reports and testimony. " According
to Plaintiffs, " this evidence reveals
that public female toplessness does
not violate the public sensibilities
of Ocean City residents and vacationers. "
While
acknowledging " Dr. Herbenick
has experience and expertise
in human sexuality, including
American societal attitudes
concerning female breasts, " the
federal appeals court found her
testimony and opinions were not
relevant on " the discrete issue in
this case - the public sensibilities
of Ocean City residents and
vacationers on the issue of public
female toplessness. "
As described by the court, Dr.
Herbenick had found " a substantial
transformation in male and female
swimwear in Ocean City over the
last century. " The relevant issue,
however,
identified by the court
was " not whether society's ideas
around appropriate beachwear
have evolved over time, as they
undeniably have. " Rather, as identified
by the court, the " discrete issue "
for judicial consideration was
" the current public sensibilities on
the issue of public female toplessness. "
On this
specific question,
the court found Dr. Herbenick had
November 2021 - Parks & Recreation

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