In the time-honored legal tradition of punny, snarky, and sassy judicial rulings, a federal judge in Texas has shown us once and for all what a law school degree will allow you to accomplish. U.S. District Judge Fred Biery issued a ruling on April 29 bursting with double entendres in a case involving San Antonio strip clubs. The ruling titillated readers and aroused their interest, but ultimately left the strip clubs unsatisfied.
A city ordinance in San Antonio requires exotic dancers to wear bikini tops, rather than just pasties, to cover their nipples. Strip clubs requested a preliminary injunction to block enforcement so they could keep having their wild nights without facing the consequences.
The judge called the case The Itsy Bitsy Teeny Weeny Bikini Top V. the (More) Itsy Bitsy Teeny Weeny Pastie, and said that the issue had “once again fallen into the court’s lap.” In Judge Biery’s words, “Plaintiffs clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of unconstitutional power.”
Getting down to the point, the judge stated, “The age old question before the Court, now with constitutional implications is: Does size matter?" He also noted, "Plaintiffs, and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of City government."
In the end, the judge stayed firm, saying that the ordinance would not cause irreparable harm or violate the First Amendment. He urged the parties to pursue "reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending."
Judge Biery is known for his humorous rulings, but he has also made formidable enemies like former House Speaker Newt Gingrich. Is the ruling a seductive tactic to woo the goodwill of the people, or the product of the judge’s engorged ego? History will tell if Biery’s wit will bring him rising recognition, or if he prematurely shot his wad and won’t get another chance.
This isn’t the first time a judge has let loose and had some fun. When faced with the weighty duty of determining if someone who had to ride in a golf cart from hole to hole was in fact golfing, Supreme Court Justice Antonin Scalia responded, “It has been rendered the solemn duty of the Supreme Court of the United States ... to decide What Is Golf ... Is someone riding around a golf course from shot to shot really a golfer? Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question."
Judge Samuel B. Kent, who had had it up to here with the lawyers arguing a case in 2001, wrote that "Both attorneys have obviously entered into a secret pact — complete with hats, handshakes, and cryptic words — to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed."