TBA Law Blog

Posted by: William Haltom on Jul 24, 2009

Journal Issue Date: Aug 2009

Journal Name: August 2009 - Vol. 45, No. 8

Mark Twain once said he would rather have termites infest his house than have the Missouri Legislature go into session. Some cynical folks feel the same way about the Tennessee Legislature. But not me. Some of my best friends are members of the Tennessee Legislature, and I have the cancelled checks to prove it.

Each year you and I can count on Tennessee lawmakers to come up with creative new approaches to protect our rights. Take the most recent legislative session. (As State Representative Henny Youngman would say, "Please!"). It will go down in Tennessee history as the Legislature that protected Tennesseans' rights to bear arms, bare butts, and big bellies.

Enough (in fact, more than enough) has been written regarding the new Tennessee laws protecting our rights under the Second Amendment. But too little attention has been given to what the Legislature did (or actually, did not do) that impacted Tennesseans' rights to bare butts and big bellies.

Specifically, the Legislature did not pass the so-called "saggy pants" law, while it did pass Senate Bill 1092 that would prohibit Tennessee cities and counties from requiring restaurants to provide calorie counts on food items on menus. (I'm not sure these two items are related, but then again, maybe they are.)

In March, State Representative Joe Towns introduced a bill that would ban low-riding trousers that "exposes the (wearer's) underwear or bare buttocks."

Representative Towns proposed the "saggy trousers" law as a part of the war on crack. As Representative Towns told The Tennessean, "People with the crack of their butt showing is offensive. I should have called it the anti-crack bill, because people are tired of seeing the crack of folks' butts."

Opponents of the proposed new law quickly challenged its constitutionality. Hedy Weinberg, Executive Director of the American Civil Liberties Union of Tennessee, told The Tennessean, "We cannot criminalize the style of dress just because we find it distasteful. Banning saggy pants violates freedom of expression and promotes racial profiling."
Card-carrying members of the ACLU were not the only folks concerned about the constitutionality of the proposed saggy pants law. "Titty Bar" owners were also concerned. Stay with me, brothers and sisters, because to borrow a phrase from the great Dave Barry, I promise you I am not making this up.

Tracie O'Neill, a Nashville lobbyist who represents strip clubs, also warned Tennessee lawmakers that the saggy pants bill was unconstitutional. According to an article in The Nashville Scene, Ms. O'Neill was concerned that police officers in Tennessee would use the saggy pants law "to raid titty bars to arrest strippers."

No doubt about it, this was a legal issue that needed to be briefed (so to speak) from top to bottom.

And so, State Representative Karen Camper asked Tennessee Attorney General Bob Cooper to give a written opinion as to whether the proposed saggy pants law was constitutional.

General Cooper gave the matter a great deal of thought. He is not the sort of guy who just files an opinion off the cuff or on the fly.

On May 8, 2009, General Cooper notified legislators that the proposed saggy pants law was "... arguably constitutionally vague because it does not set forth a standard for its violation that may be readily understood." Furthermore, General Cooper said, "If passed, the legislation could also be vulnerable to constitutional attack on substantive due process grounds because it arguably interferes with a liberty interest to dress as one chooses."

As always, the Legislature listened to General Cooper, and at this very moment, I am exercising my liberty right to wear my seersucker trousers dragging low along the side of my hips.

But while the Legislature protected my right to bare my fanny as well as my arms, its efforts to protect my right to a big belly was vetoed by a calorie-conscious Governor Bredesen. Pointing out that a whopping 36 percent of Tennesseans are now "obese" (a legal term meaning fat as a pig), the Governor vetoed the bill which would have prohibited Tennessee counties and municipalities from requiring restaurants to provide calorie information to their customers.

I am just hoping the City of Memphis does not now pass an ordinance requiring the Rendezvous to post on its menu how many calories are found in a slab of ribs. If this happens, I will be so mad I will exercise my First Amendment right to lower my saggy seersucker pants and moon the waiter.

Bill Haltom BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.