In a very colorfully worded opinion that was released on Monday, a San Antonio judge ruled against a request by local strip clubs to stop the city from enforcing a new ordinance requiring entertainers to use bikini tops instead of pasties. Titled “The Case of The Itsy Bitsy Teeny Weeny Bikini Top versus the (More) Itsy Bitsy Teeny Weeny Pastie," Chief U.S. District Judge Fred Biery’s opinion is an entertaining read.
“The court infers plaintiffs fear enforcement of the ordinance would strip them of their profits, affecting their bottom line,” the opinion states. “Conversely, the city asserts these businesses contribute to reduced property values, violent crime, increased drug sales, prostitution and other sex crimes and therefore need to be girdled more tightly. Plaintiffs, and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of city government.”
The judge also wrote: "To bare or not to bare, that is the question." In the opinion, he encourages both parties in the case to "navigate the peaks and valleys of litigation, perhaps to reach a happy ending."
Although the judge’s attempt to be clever may be amusing to some, others are not impressed, My San Antonio reported.
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“I think Judge Biery's decision is correct as a legal matter, but his opinion fails if he was attempting to be witty or attempting to write 'tongue in cheek,' and his use of double-entendres largely fails as humor and appears almost intended to offend,” said St. Mary's University School of Law professor Michael Ariens. “His footnotes, which cite Shakespeare, the Bible and 'To Kill A Mockingbird,' seem less erudite than a matter of showing off.”
Steven Lubet, who teaches ethics at Northwestern School of Law in suburban Chicago, agreed. “There's nothing wrong with it in any formal sense,” said Lubet. “But it is seldom a good idea because the issues are very serious and the people involved often don't appreciate humor in decision-making.”