COVINGTON -- The Covington City Council will decide whether to adopt a public indecency ordinance regulating the wearing of baggy pants at its Monday night meeting.
Mayor Ronnie Johnston said he's concerned about the legality of such an ordinance.
"I'm not sure this one is the best one to bite off," Johnston said at a Wednesday night work session.
Councilwoman Hawnethia Williams agreed.
"I don't like to see it anymore than anybody else, but there is a lot of anxiety going on right now. People are going to perceive it as profiling when they see a certain segment of our population being targeted. It's going to spiral into something we really don't want," she said, adding that, "There's so much tension going on with the situation in Florida."
Williams was referring to the shooting death of Trayvon Martin, an unarmed black teen wearing a hoodie who was shot by a neighborhood watch volunteer in Sanford, Fla.
"I don't see it as profiling," said Councilman Chris Smith, who proposed the ordinance. "White people have their pants down like African-American people do. It's not just one group of people doing it."
Williams responded that, "It would be hard for you to put yourself in the position of a minority and the way they see it. ..You can't put yourself in my position and I can't put myself in your position."
"In the city of Covington, I am the minority," Smith said.
Assistant City Attorney Frank Turner Jr. wrote a memo to the council stating that he has drafted an ordinance restricting the wearing of pants more than three inches below the waist such that undergarments are exposed, and addressing potential challenges to the validity of the ordinance.
The most likely grounds for challenge is that the ordinance restricts the wearer's right to expressive conduct, which is protected under the First Amendment freedom of speech provision, he said.
It would be up to a court to determine if a message was being conveyed by the wearer and whether others would understand that a message was being conveyed.
"This is a very fact intensive question and one cannot say with certainty how a court would rule," Turner's memo states.
If the court determines that wearing baggy pants is expressive conduct protected by the First Amendment, then the determination would have to be made of whether the regulation is constitutional.
To regulate a First Amendment right, the city would have to prove that wearing baggy pants results in negative secondary effects on the community; reducing those negative effects is important; and regulating free speech rights is related to reducing those effects.
"Cases where the Courts have found that there is a substantial government interest in regulating morality usually involve obscenity or nudity," Turner's memo states. "This ordinance prohibits showing of underwear under baggy pants. Yet the city would not prohibit the wearing of swimsuits, which provide approximately the same coverage as underwear."
Turner sad the Supreme Court has ruled that the government cannot regulate expressive conduct because it desires to protect the sensibility of passersby.
Turner said it's unlikely that a court would find baggy pants are constitutionally protected expressive conduct, but if it did, the ordinance would likely be invalidated.
"I just thought it would be a simple way to clean up the appearance of our town. I didn't want it to become a major heated argument with the council," Smith said.
But Williams said, "It doesn't take much to divide the people."
"And don't you think it's our responsibility not to be divisive?" Johnston added.
The council will discuss the matter further Monday. A work session will take place at 5;30 p.m. followed by the council's regular meeting at 6:30 p.m. at City Hall.