Fort Collins city attorneys fire back at 'Free the Nipple' lawsuit

FORT COLLINS, Colo. -- Attorneys for the City of Fort Collins are asking a judge to dismiss a federal lawsuit stemming from an ongoing fight over female toplessness.

Brit Hoagland and Samantha Six sued the city in June claiming a city ordinance banning women from baring their breasts in public is a violation of the first amendment.

This week, the City of Fort Collins filed a response in federal court, arguing the case should be dismissed because, in part, the ban does not violate the right to free speech due to the fact that topless women are not conveying a specific message.

Attorney David Lane is representing Hoagland and Six. He disputes the city’s assertions.

“The U.S. Supreme Court says conduct as speech is in fact protected by the Constitution," Lane told Denver7 Investigates.

The city also argued in its response to the lawsuit that courts have upheld challenges to nudity bans in the past.

“Even if the action of taking off one’s top could be considered protected speech, regulation of such activity is constitutionally permissible,” the city’s legal filing reads.

Lane compares the case to those who burn or stomp on American flags – he said while it may be uncomfortable to see it, the government is in no position to stop it.

"Culture has had to change as time has changed,” Lane said. “A law that allows men to walk around topless, but doesn't allow women to walk around topless… it may be that that law has outlived its time."

The city’s toplessness ban does not apply to mothers who are breastfeeding “in places they are legally entitled to be.”

Fort Collins city officials did not return calls for comment about the lawsuit on Friday.