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Bikinks, baristas & free speech

| Wednesday, Oct. 4, 2017, 9:00 p.m.

SEATTLE

Amazon is not the Northwest's only commercial disrupter. In Everett, near Seattle, Liberty Ziska and other bikini baristas, giving new meaning to coffee as a stimulant, have provoked the city council to pass, unanimously, ordinances requiring baristas to be less nearly naked when they work. The baristas, in turn, have hired a lawyer and made an argument germane to current disputes about freedom of speech. Their argument, they might be surprised to learn, is Aristotelian. Sort of.

Everett has not succumbed to Pecksniffian Comstockery: The city reports “a proliferation of crimes of a sexual nature occurring at bikini barista stands,” which it primly suggests has something to do with “the minimalistic nature of the clothing worn by baristas.” Henceforth they must wear at least shorts and tank tops. The new dress code has notable specificity that has the baristas incensed about the examinations and measurements that law enforcement might require.

The baristas fire heavy constitutional artillery in ways pertinent to how freedom of speech is debated and defended — or not — where it is most important and most besieged: on campuses. The baristas say: The ordinances banning bikinis violate the First Amendment because they are “content-based and viewpoint-based restrictions” that “impermissibly burden and chill” their freedom to “convey their messages of female empowerment, positive body image” and other things, targeting them “because Everett does not agree with their message.”

Ziska and her co-workers strain to argue teleologically. Greg Weiner, an Assumption College political philosopher, has urged participants in the campus arguments to reason as Aristotle did, to be less deontological (rights-based in their advocacy) and more teleological (ends-based). To argue deontologically is to treat speech as an autonomous good, regardless of its moral or social purpose, if it has one. To argue teleologically is to stress why — for what purpose — we should value speech.

Aristotle defined human beings as language -using creatures, which makes the expressive value of tattoos, piercings, body parts, etc., less than fundamental. The Supreme Court, Weiner notes, has generally accorded the most robust protection to speech , and speech that is political, broadly defined — concerned with securing the goods of self-government. The fundamental purpose (telos) of the right to free speech is to protect a panoply of other rights.

So, the First Amendment rightly protects not just speech but “expression,” and a free society should give generous protection even to expressions that serve no public purpose, but just make the expressing persons happy. But speech about the pursuit of truth, justice and other important public matters — central to academic institutions — merits more rigorous protection than the baristas' right to display, among much else, their tattoos, piercings and scars.

Everett should have some latitude to balance other public goods against the expressive pleasure and even commercial advantages that Liberty Ziska and her colleagues derive from sartorial minimalism. Universities should protect almost absolute freedom for arguments about politics, classically and properly defined broadly as the subject of how we should live.

George F. Will is a columnist for Newsweek and The Washington Post.

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