Whether First Amendment protection extends to expressive-conduct

QUESTIONS PRESENTED FOR REVIEW The petitioners are women who serve coffee at drive-thru stands in Everett, Washington. These baristas express themselves by wearing revealing outfits that intentionally diverge from societal workplace-attire norms. Through their mode of dress, the baristas communicate messages including female empowerment, freedom of expression, and body confidence. The City of Everett passed a dress-code ordinance targeting the baristas and their expressive conduct. In upholding the dress code, the court of appeals held that the First Amendment does not protect the baristas’ expression because they “fail[ed] to show a great likelihood that their intended message will be understood by those who receive it.” In so holding, the Ninth Circuit deepened an unmistakable split among the courts of appeals over what triggers First Amendment protection for expressive conduct. In denying First Amendment protection, the Ninth Circuit also held that the commercial setting in which the baristas’ expression occurred “makes the difference.” The questions presented are: 1. Whether First Amendment protection extends to expressive conduct only when there is a “ereat likelihood” that an intended particularized message will be understood by those who view it. 2. Whether the commercial setting of expressive conduct diminishes the First Amendment protection available to the speaker.