Panel T01-P05 Session 3
Taking Stock of Policy Entrepreneurship: Current Trajectories and
Future Directions
The women's topless movement in the United States: A case study
of policy entrepreneurs utilizing federal courts to create public
policy
Jamie Falcon
United States Coast Guard Academy
[email protected] 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
June 27, 2019
Abstract In the spring of 2018, a federal lawsuit was filed against the Town of Ocean City, Maryland for the purpose of nullifying a Town ordinance banning females from publicly displaying their breasts. The basis for the complaint is the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The women’s topless movement is a relatively new, ongoing movement, aiming to utilize the federal judicial branch in lieu of legislative processes as a path to social policy formation. The goal of the movement is for women to have the right, equal to men, to be topless in public. The current strategy of the policy entrepreneurs is to use the federal court system to nullify local ordinances, such as the Ocean City ordinance, thereby making public female toplessness legal across the U.S. This research analyzes this strategy in the context of the major approaches of public policy theory. The hypothesis of this qualitative study is that policy formation through case law is different from the public policy formation approaches theorized around statutory law. The approaches analyzed include Kingdon's policy streams, bounded rationality, punctuated equilibrium, the argumentative approach, new institutionalism, policy instruments, the institutional analysis and design approach and the advocacy coalition framework. This study of an ongoing movement is particularly valuable because the outcome is not yet known and a coalition of activists is not yet established. Selection bias may be an issue when case studies of successful advocacies are analyzed ex post. This ongoing movement may succeed or fail, so selection bias is not an element. Many of the approaches to the study of public policy depend upon a cohesive advocacy seeking to favorably frame policy issues. This study shows that this advocacy is presently not cohesive and some advocates use markedly different tactics which may be counterproductive to the actions of other advocates. This movement may become cohesive. It is also possible that cohesion will prove to be irrelevant to the movement's success or failure in policy formation. By analyzing this advocacy in process, the factors contributing to its success or failure are better illuminated than they are for ex post case studies. Since this is a study of an ongoing process, and advocates may become aware of the study, the potential for the study itself affecting the process is discussed.
Keywords: policy formation, entrepreneurship, social movements, toplessness
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Introduction
This is an examination of a burgeoning movement whose advocates are currently attempting to use the U.S. court system as the path to enact public policy. This is a markedly different approach to policy formation than the legislative process typically studied in the academic field of public policy. Using a case study of a topless movement, part of a larger gender equality movement, differences and similarities between civil and tort policy formation are explored and presented in this paper. These differences and similarities are explored through each of eight theories of public policy formation. These are Kingdon’s policy streams, bounded rationality, the argumentative approach, punctuated equilibrium, policy instruments, the institutional analysis and development framework, new institutionalism, and the advocacy coalition framework.
This examination is a case study of an active social movement. The movement’s efforts to affect public policy are evaluated. This study effectively exposes strengths, weaknesses, opportunities and threats that might hinder the movement. It also reveals conflicts with related movements and how these conflicts may affect policy formation and goal attainment. Because the movement is only burgeoning the outcome is uncertain. Unlike other examinations, confirmation, hindsight and framing biases, components of ex-post analyses, or advocacy, are not threats to this study's internal validity. Studies of large well- known successful movements such as the Civil Rights Movement, the Protestant
Reformation, Women's' Suffrage, etc. provide insight. However, if researchers only evaluate movements that have been successful or are well-documented in the history of national mood, then selection bias is a factor in those evaluations. The topless movement may be small,
Women’s topless movement 3 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal although the advocates would disagree, but that "smallness" is part of the value of studying it; this movement may fail. Understanding the details of the effort, as they occur, is a path to better understanding the role of pressure groups in agenda setting. Academics, policy makers, and advocates, as well as opponents, may use this to understand the strengths and challenges of social movements in democratic republics.
What is the Topless Movement
The aim of the topless movement includes, but is not limited to, policy change. The stated full intention of these actors is to elicit changes in social norms that make female toplessness as socially acceptable as male toplessness. Furthermore, this aim is one facet in the advocates' larger goal of gender equality. There are several organizations at the heart of the topless movement. Three independent groups, Free-the-Nipple, Topless Now, and Go
Topless are prominent organizations behind this movement. Policy change is a step in the process toward the long-term goal of changes in social norms around women's toplessness in public. An important distinction between the efforts of these advocates and policy entrepreneurs discussed in most public policy works is that these advocates seek to, and have been successful at, forcing open policy windows at the local that have produced policy contrary to their stated goal. By succeeding at this, they are then able to use the courts in an effort to enact national policy in direct opposition to the local legislative policy they have induced. This is markedly different than policy entrepreneurs working to sway institutions, groups or individuals to their thinking.
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These independent advocacies promote gender equality in the form of women's rights, by policy as well as social norm, being equal to that of men to be topless in public. Policy change is a prerequisite. Phillip Ball (2004) conveys, through examples, the nature and the difficulty in changing social norms:
In Baroque, England you would not think of appearing at the royal court
without your wig: in the 1920s only ill-mannered and disreputable men
walked the streets of New York City without a hat. There is no law (as far
as I am aware) against shopping in your underwear, or shaking hands
with your left hand, but few of us consider doing these things.
Ball describes social structures as conditions which "keep the need for thought to a minimum." He observes that if, instead of accepting norms without thinking about them, we decided each day how we would each make fresh decisions about how to conduct ourselves, we would fail to be productive. Behavioral economists place this distinction between actions without thought and actions with thought in a dichotomy of "type 1" or "type 2" (Kahneman
& Tversky, ) An assumption associated with this dichotomy is that humans are generally lazy and prefer to approach decisions using type 1 thinking and we will use type 2 when compelled (Ball also describes our thinking as lazy). Using this dichotomy, the aim of the topless movement is to induce a critical mass to use type 2 thinking about women being topless in public. The court system approach thus provides two benefits to their advocacy, it affects public policy, a primary path to their goal, and controversy and media coverage of these lawsuits which gives these advocates voice and an opportunity to trigger type 2 thinking in the minds of audiences to bring about a change in norms. Ball (2004) describes this event
Women’s topless movement 5 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal as a "shock" that may "shake people's preconceptions and force them to rethink their position."
This Movement and Conflated Activism
Chelsea Covington of Topfreedom now is advocating in parallel to groups of women in Fort Collins, Colorado and in New Hampshire who are part of the Free-The-Nipple organization. Other than her citing their court proceedings, there are no indications that these groups are coordinated. Topfreedom and Free-The-Nipple are organizations with the shared goal of the normalization of topless women, identical to topless men, as part of the larger goal of gender equality.
Covington requested a legal opinion of her being topless in Ocean City, Maryland of the local state’s attorney who requested the same from the state’s attorney general. The head of the local beach patrol issued written instruction that topless women were not to be told to cover themselves until legal guidance was provided. That memo was obtained by a local reporter who wrote about it. About a week later, the city council, reacting to “wild” social media passed an emergency ordinance banning women from being publicly topless. Soon after, Covington filed suit in federal court (Covington, 2017). In December, 2018, Covington lost her request for a preliminary injunction of the ban (Swan, 2018). A similar lawsuit was lost by topless policy entrepreneurs associated with Free-The-Nipple in New Hampshire in
February, 2019 (Jacobs, 2019) but the plaintiffs of a similar case in Fort Collins, Colorado won in federal court in February, 2019 (Coltrain, 2019).
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A European based group, Femen, is made of activists seeking the same larger goal of gender equality. Like Topfreedom and Free-the-Nipple, this group, generally of women, protests topless. However, the achievement of normalization of female toplessness would deprive this group of their "best weapon” (Femen, n.d.). Furthermore, Topfreedom and Free- the-Nipple present women’s breast as unshocking and sexual only in the eyes of the beholder.
Femen uses the shock of topless women in protest to draw attention to other gender-equality issues. The following is from their website (n.d.):
FEMEN is an international women’s movement of brave topless female
activists painted with the slogans and crowned with flowers.
FEMEN female activists are the women with special training, physically
and psychologically ready to implement the humanitarian tasks of any
degree of complexity and level of provocation. FEMEN activists are ready
to withstand repressions against them and are propelled by the ideological
cause alone. FEMEN is the special force of feminism, its spearhead
militant unit, modern incarnation of fearless and free Amazons.
FEMEN’s naked attacks is a naked nerve of the historic woman-system
conflict, its most visual and appropriate illustration. Activist’s naked body is the
undisguised hatred toward the patriarchal order and new aesthetics of
women’s revolution.
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It is clear the at the strategies of these activists are different but their goals are overlapping.
Chelsea Covington, the policy entrepreneur who is currently a plaintiff advocating for this movement has posted the following description of her approach (2015):
I don’t go bare-chested because I feel angry. I go bare-chested because I
wish to feel light and happy and free. I don’t begrudge the protesters at all.
Without them the message would be forgotten. Protesters have changed the
laws to protect gender equality. But in order for female bare-chestedness to
be accepted socially as opposed to legally, which is a far more subtle and
difficult challenge, bare breasts must stop being the focus of attention.
Waving signs that basically say, “Don’t look at my breasts!” can confuse
observers. I have instead chosen to simply appear bare-chested in public
behaving normally, doing normal things. No signs. No chants. No slogans.
No arguments, ideally. I just want to go for a walk on a nice day feeling free.
I suspect a lot of women feel the same. So with that said, here is the first
piece of advice I can offer. Act normal.
At first glance, there probably do seem to be many more important struggles
going on in the world than women having the right to go bare-chested in
public. But in the broader sense, the topfreedom movement has arisen over
decades as a response to a society that has continued to blame women for
rape and assaults instead of holding their attackers wholly responsible for their
crimes..... Topfreedom now also addresses other areas such as body
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shaming, body positivity, bullying, forced modesty, entrenched prejudice and
gender stereotypes, bias in women’s health and so on. And what that all
means is that at its core, our lawsuit against Ocean City is about the single
most important challenge facing American society today broadly speaking,
namely… are we a society in which all people are governed by one set of
rules, no asterisks, no exceptions? Is the United States a land of equality or
inequality? Nothing is more important to the future of the United States.
Nothing.
Covington’s strategy and goals align with those of the prominent organizations of the movement. The New Hampshire Free the Nipple group posts the following description of the movement on their Facebook page (n.d):
Free The Nipple is a movement whose goal is to expose the double
standard that allows men to be topless in certain public areas, such as
beaches and pools, but does not allow women the same right. This
campaign is important because we live in a country that stands on the
belief that all persons are created equal. This means that women have
just as much right to bare her breasts and expose her nipples as any
man. It is important that women have this right because without it, we
don’t have ownership over our own bodies. Both men and women’s
nipples are anatomically the same. By criminalizing and sexualizing
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women’s nipples not only does that take away ownership of her own
body, but it can cause her to feel insecure, embarrassed, and
ashamed of something all humans have. This shame can negatively
affect and make breastfeeding, the actual purpose of a woman’s
breasts, even harder and in many cases can cause the women to be
isolated and fear being shamed by the general public if she was to
breastfeed in public. I have experienced this firsthand. Our goal is to
do a protest to show the world that a woman’s breasts and nipples
can be seen in a non-sexual way.
Competing advocacies with marginally-distinguishable agendas to set may not be unique to the topless movement. Nor might it not be unique to this movement that some factions' tactics or agenda-targets conflict.
Coalition Building or Passive-Aggression
Kingdon describes politics as "not the sole province of politicians" (1995, P. 19). He includes interest groups as part of the set subject to politics. Activism in the topless movement confirms that characterization. On her blog dated September 15, 2015, Chelsea
Covington has a photo of herself topless in a kayak with the Delaware Capital Building in the background and a caption stating, " Delaware code criminalizes female breast exposure." The image and the caption illustrate an act of civil disobedience. But, on January 2, 2017, she wrote, in lamenting her wish for greater media support, that bare-chestedness is legal where
Women’s topless movement 10 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal she makes her outings. On November 13, 2018, Gotopless posted on their Facebook page a video of several Femen topless protests of a generally violent nature. These include topless women running in front of moving vehicles, “stealing” a baby Jesus from a nativity scene at the Vatican, and vandalizing art at the Louvre. Gotopless asks their followers which of these they find “most powerful.”
These apparent conflicts between statements and actions may serve a purpose of coalition building. By stating a distaste for violence, Gotopless gains the support of peaceful protestors who agree with their goals. By sharing reports of violent protest, aimed at the larger goal of gender equality, Gotoplesss maintains the support of more militant activists as well. This builds a coalition of activists with related goals even when their preferred tactics are markedly different or even at odds.
Deliberate Controversy
Activists behind this movement have sought policy change through statutory law and common law. The common law approach yields more publicity and, to date, has been more successful for the movement. In September, 2017 in Berkeley, California, a councilwoman proposed legislation that would formally legalize women being topless in the jurisdiction.
The legislation was crafted by her high-school student intern. The motion was tabled
(PRNewswire, 2017). However, the City Council of Fort Collins, Colorado has decided not to appeal to the U.S. Supreme Court (Coltrain, 2019). According to a May 30, 2019 post on the Facebook page of Gotopless, the current court decision applies to Colorado, Wyoming,
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New Mexico, Kansas, Utah and Oklahoma. It appears that the judicial approach to policy formation is yielding more success for these entrepreneurs than the legislative approach.
Near Ocean City, Maryland is a secluded beach well known for non-enforcement of indecent exposure laws (Maryland Nudists, 2012). Covington demonstrates courage and tenacity which could be used to find such locations which would likely yield no controversy and thus provide no opportunity for lawsuits. It appears the judicial route has the potential to illicit policy change. Without controversy, however, this path is not available.
Research Question and Methodology
The purpose of this study is to analyze these entrepreneurs actions to assess their approach to policy formation through the lenses of eight major theories, or approaches to assessment. Each approach is briefly reviewed and discussed for its goodness of fit to these entrepreneurs’ efforts. A hypothesis is that the choice of usage of the judicial process is markedly different from entrepreneurs’ use of the legislative process.
Efforts to Apply Theories of Public Policy Formation
Kingdon’s Policy Streams
With some creative application, Kingdon’s Policy Streams approach can be used to describe these entrepreneurs’ current tactic of utilizing the courts to affect public policy. The
Women’s topless movement 12 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal approach does not fit well because the entrepreneurs intention is to skip agenda setting, in legislatures, all together. Kingdon points out that there are predictable windows (Kingdon,
1995, P. 186), so one could loosely describe filing a lawsuit for the purpose of public policy change as exploiting a predictable window. However, Kingdon describes the predictable window as one which opens on a scheduled basis such as a budget hearing. His policy streams theory involves the simultaneous crossing of a problem stream, a policy stream, and a politics stream to open an unpredictable window which enables a policy issue to be on policy makers’ agenda (Kingdon, 1995). These policy entrepreneurs are working to couple the streams. They are working to influence the streams through efforts to raise public awareness of their issue through their websites, marches, planned public appearances or coordinated flash mobs in support of favorable political candidates (Figure 1; Hebron, 2016) and a 2014
Netflix documentary entitled, Free the Nipple (Peterson, 2018). These entrepreneurs are also working to influence the politics stream by raising awareness of their issue, which lawsuits and the earned media that come with them might help to do, as well as candidate advocacy
(Hebron, 2016). But, they are also using the judicial process to 1. place their issue on what is effectively the judiciary’s policy agenda and 2. further raise public awareness of their issue so that, should they fail with 1, they may later couple the streams to open policy window in legislatures.!13
Bounded Rationality
Bounded rationality is an approach to examining social decision making as some aggregate of individual decisions. This theory of individual choice was developed in
Women’s topless movement 13 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal dissatisfaction with rational choice theory, particularly the utility model, of economics
(Simon, n.d.). An important element of this theory is the belief that people make decisions given their environment and are thus compelled to choose from among alternatives readily available, cognitively, to them. Since the women’s topless movement is approaching policy formation through the judicial process, the bounded rationality framework could be applied, imaginatively, in the sense the judges must make decisions from a narrow set of alternatives.
However, the limitation of these decision makers is their interpretation and applicability of law and president. This is not an optimization problem. It might be argued that judges’ interpretation is subject to cognitive limitation but the process provides advocates, and their lawyers, opportunity to affect judges’ thinking. Put differently, the filing of lawsuits places the issue on the policy agenda, at least at lower level courts, automatically.
Another way to apply bounded rationality theory to the topless movement is to drop the individual decision maker constraint and assume social decision-making occurs with individual foundations. Specifically, the overall goal of the movement is to change social norms. Presently, they are using the court system primarily in an effort to change policy. But, a second outcome of their actions is media attention. There is evidence that this attention is eliciting type II thinking within journalists and thus, likely, society. For example, the
Washington Post covered the issue with the headline, “In Ocean City, Hooters, thongs and horror over topless women on the beach” (Dvorak, 2017). Clearly “horror” is used sarcastically indicating the author feels the ban was an over-reaction. Through this earned media, readers thus are compelled to engage more than type I thinking.
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By applying bounded rationality in the manner I have done here, I am suggesting that bounded rationality theory has a role within Kingdon’s Policy Streams theory. If society comes to willingness to change the norm through the coverage of the lawsuits effectively the lawsuits are developing the issue and strengthening Kingdon’s problem stream. It is possible that these entrepreneurs may succeed in have policies created counter to their goal so they may take municipalities to court, lose in court, but through this they may succeed in softening society to their cause as to couple streams and open a policy window for successful passage of favorable legislation in the future.
Augmentative Approach
The argumentative approach is an interpretive approach, as opposed to an empirical approach to policy analysis. Fischer (n.d.) succinctly describes the argumentative approach,
“Grounded in interpretive social science, the approach rejects the idea that there is a social reality out there merely to be uncovered.” Fischer describes my challenge as I examine the strategy of these policy entrepreneurs seeking to attain their goal of topless equality: “The policy researcher enters inter-subjective realm to investigate the processes of argumentation as the purposes, intentions and motives of policy actors are carried, implicitly and explicitly by competing policy arguments” (Fischer, n.d.). Clearly, this approach fits well to analyze the topless movement’s current tactic of eliciting unfavorable policy so they may sue to obtain broad reaching favorable policy. Specifically, the movement is working to enact public policy through legal arguments around public sensibilities. By utilizing the court system, they, and their advocate lawyers, are given ample opportunity to argue their case. To date however,
Women’s topless movement 15 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal some judges have decided their intention defies public sensibilities. This has been true in the hearing for a preliminary injunction in the Ocean City case and it was also the reason for loss in recent New Hampshire case (Jacobs, 2019).
This relationship between public sensibilities and the current failure to see passed favorable public policy illuminates the weakness of the argumentative approach in analyzing the goals of this movement. The true goal of the movement is to affect public sensibilities.
Yet, it is current public sensibilities the obstruct their path to favorable public policy. There plainly exists here some causal relationship akin to a system of equations. I may fail to neatly describe this process within empirical approaches to public policy analysis or the empirical approaches may require some adjustment. However, these policy entrepreneurs do seem to have some sense of strategies they are utilizing to affect public policy.
Punctuated Equilibrium
This study is an examination of a living movement and the strategies of the policy entrepreneurs associated with the movement. Their aims are to illicit legal and social change but it is not yet known if they will succeed. Punctuated Equilibrium Theory (PET) is applicable to social change broadly as well as public policy formation or agenda setting narrowly. PET has some limitations when it comes to making “point-specific predictions for particular policy issues” (Sabatier & Weible, 2014, p. 91). Thus, PET offers little help in evaluating entrepreneurs’ efforts at affecting policy at the current stage of the women’s topless movement.
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Policy Instruments
Policy instruments are tools used by governments to influence outcomes. An example might be a tax (Cairney, 2016, 3). With imagination, the approach could be used to analyze the language of written policy and the movement’s activists in response to that language.
With the passage of the emergency ordinance, Section 58-192 of Ocean City, Maryland’s codes now clarifies the definition of indecent exposure (Municode, n.d):
Nude, or a State of nudity means the showing of the human male or
female genitals, pubic area, vulva, anus, or anal cleft with less than a full
opaque covering, the showing of the female breast with less than a fully opaque
covering of any part of the nipple or the showing of the covered male genitals in
a discernibly turgid state.
The human male genitals in a discernibly turgid state, even if completely
and opaquely covered; or
Less than completely and opaquely covered human genitals, pubic region,
anal cleft, or a female breast below a point immediately above the top of the
areola.
Although the photo was not taken in Ocean City, Figure 1 illustrates activists of the female topless movements’ response to specific language. If the instrument is defined as language of the policy, it could be argued that behavior is being influenced. However, it is unlikely that the behavior is an intended consequence of that language.
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Institutional Analysis and Development Framework
Institutions are invisible and defined differently by different scholars (Ostrom, 2015).
A discussion of the topless movement’s entrepreneurs’ efforts to affect policy utilizing institutions, defined as organizations, is presented below under “new institutionalism. In the development of the Institutional Analysis and Development Framework (IAD) Ostrom (2015) expands this definition to include humans in repetitive situations organized by rules, norms and strategies. Figure 2 presents Ostrom’s AID framework.
With creative application, parts of Figure 2 could be used to describe the behaviors of the policy entrepreneurs seeking policy change to facilitate the women’s topless movement.
These activists have, arguably, exploited the rules and attributes of particularly communities, such as Ocean City, Maryland to illicit what might have been predictable actions.
Specifically, they succeeded in having passed an emergency ordinance that explicitly banned the particular behavior they were seeking the freedom to do. By their own design, arguably, the ordinance provided them the grounds for a lawsuit based on the equal protection clause of the U.S. Constitution. The subsequent hearing for their request for a preliminary injunction offered them public interactions with an outcome, which was upon this hearing unfavorable to them. Now, they can evaluate and renew their efforts. The IAD does provide a framework for a causal relationship. The weakness of evaluating the women’s topless movement with this framework is that the causal relationship, although it can be illuminated, yields no predictive power. Specifically, awareness of a return to addressing the attributes of the community and rule, generally norms in this context, tells us nothing of what they might be expected to do next. Utilizing the advocacy coalition framework in this context, at least we
Women’s topless movement 18 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal can predict that the entrepreneurs will continue to try to bolster their network. Or, thinking in terms of Kingdon’s policy streams, we can predict that they will continue to develop the streams and work in wait for their coupling.
FIGURE 1. (HEBRON, 2016) ACTIVISTS OF THE FEMALE TOPLESS MOVEMENT FREQUENTLY USE TAPE TO COMPLY TO THE LETTER OF THE LAW WHILE DEMONSTRATING RESISTANCE TO THE SPIRIT OF THE LAW. THE MOVEMENT DOES MAKE EFFORT TO INFLUENCE KINGDON’S POLITICAL STREAM.
FIGURE 2. (COLE, 2017) OSTROM’S INSTITUTIONAL ANALYSIS AND DEVELOPMENT
FRAMEWORK.
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New Institutionalism
New institutionalism is an approach to policy analysis which anticipates that hard institutions play a significant role in policy formation. It could be argued that the role of federal judges, appointed by a particular party, is predictable and favorable to the movement.
It could also be argued that law enforcement will behave predictably and it has been a matter of time before these policy entrepreneurs would have an opportunity to exploit the federal court system as a path toward their goals. According to CNN (Kessler, 2018), there are 669 federal judges appointed by Republican presidents to 653 appointed by Democrats. If party appointment proxied judicial preference, a stretch, the prediction of judicial outcome would still be well approximated with a coin toss. In Ocean City, law enforcement had initially been directed not to approach the women (Covington, 2017) thereby denying the entrepreneurs the option to try to utilize the courts to implement policy. Through the earned media garnered through these actions, these policy entrepreneurs have succeeded in raising public awareness and probably in softening public opinion, actions necessary to develop Kingdon’s politics stream or to broaden the boundaries of public rationality. However, examining these entrepreneurs’ efforts as they are occurring, there is little evidence that formal institutions are playing a significant role in policy formation.
Advocacy Coalition Framework
The Advocacy Coalition Framework (ACF) is a theory of public policy formation as a whole, beyond agenda-setting. ACF applies when there is a stable parameters such as the constitutional system and social norms. In this environment, advocacy groups may form and
Women’s topless movement 20 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal coalesce. This leads to competition between conflicted advocacy coalitions which may lead to regime change, changes in public opinion, or changes in socio-economic conditions.
Coalitions are engaged in “policy learning” and they encourage, or seek to exploit, “shocks” that provide opportunities for policy change (Cairney, 2019).
The women’s topless movement can be characterized within ACF. The conditions of stability are present and like-minded advocacy groups are at least loosely coalescing. The tactic of suing to affect policy to illicit favorable shocks is unique. ACF does not exclude this tactic because ACF is broad. In this context, earned media is a resource the topless movement is gaining with this tactic. As advocates observe, interact and learn, they are likely to utilize this growing resource strategically to affect legislatively produced public policy. Jenkins-
Smith and Sabatier (1994) describe the policy learning process as coalitions adopting strategies involving the use of guidance instruments, such as changes in rules, personnel or information, to attempt to alter the behavior of governmental institutions. They say that conflicting strategies are normally mediated by third parties they call policy brokers. The women’s topless movement is composed of several organizations that generally coalesce through sharing each other’s posts on social media. There are no indications of any party making an effort to mediate conflicted strategies. Some groups utilize toplessness as a tactic to shock, a tactic that can only be affective when toplessness conflicts with social norms. The larger body of the movement aims to normalize women’s toplessness. The facet of policy learning well applies to the policy entrepreneurs of this movement. According to Chelsea
Covington (2018):
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So in that vein, here’s what took so long. First, unless everything goes exactly
perfectly, the law is very, very slow. But that in itself does not account for the
time between Ocean City’s ordinance and our filing this complaint now, all
these months later. First, Ocean City made their ordinance in a panic over a
social media frenzy they perceived to be a big deal but actually wasn’t. As a
result, they drafted an amateurish, vague and short-sighted ordinance. Not
wanting to panic in return, I set about drafting a thorough response and
seeking a lawyer who actually believed in the case. It took me awhile to find
an attorney who would take the case and in fact, the one who eventually did,
Devon M. Jacob, a civil rights attorney from Pennsylvania, actually found me.
I had already approached the ACLU who offered to potentially help another
attorney but declined to take the case as the primary attorneys themselves.
That left me navigating between what ended up being six different attorneys
all giving me wisdom and advice and tangible writing and research support,
none of whom for various reasons could actually take the case officially, but all
of whom ended up providing research and assistance which I provided to
Devon for his research and writing. Devon pitched the idea that we make a
class action suit, which means a group of people objecting to the ordinance
instead of just me, which I wholeheartedly agreed to. But that meant tracking
down a half-dozen women not just willing but able to join, and each time one
joined, it meant giving that person the time and information needed to read,
understand and ask questions about the complaint she was signing her name
to. We also went out bare-chested with each of them, to make sure they really
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believed in all this and to give them the opportunity to really know what they
were getting into. Six intelligent and earnest co-plaintiffs meant a lot of
drafting and redrafting. (It’s five now, one had to drop out for personal
reasons.) Then Devon received the drafts back and went to work on them and
around we went again. If it had just been me bringing this complaint, we
would have been filed months ago. But it was important to every one of us
that we show this is not just one woman raising this concern, but that other
women agree and feel the same. Complicating matters was that Devon is
licensed to practice in Pennsylvania, so he had to make arrangements with a
local attorney to sponsor him for this one case in Maryland. It is a normal
thing for civil rights attorneys to do, but it takes time. Long and short, finally,
the complaint is filed. It is well-written, contains accurate and thorough legal
and social arguments, and gives us our best chance at success at the federal
court level.
Learning and reacting is clearly part of this policy formation process. The plaintiff acknowledges carefully studying the arguments of her opposition and crafting her own, “legal and social arguments.”
Conclusions
Women’s topless movement 23 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
This study demonstrates that public policy supporting a movement's aims are, in this case, a step toward the advocates' goal. The study also demonstrates an important distinction between agenda setting in the formation of public policy and social change. These advocates may succeed in agenda setting and ultimately fail in achieving their goal. It also illuminates divisiveness within, or closely related to, a movement which can lead to a movement's delay in agenda setting or defeat in achieving its goals.
The hypothesis of the study is that the choice of usage of the judicial process is markedly different from entrepreneurs’ use of the legislative process. This hypothesis is rejected. These entrepreneurs do not appear to be utilizing the courts in lieu of legislatures in a markedly different manor. They are appear to be opportunistic and to have identified the judicial path as potentially expedient and, as a strategy, to yield earned media which is a resource for them in efforts to form policy legislatively.
Eight major theories, or approaches, policy formation analysis were used to evaluate the actions of these entrepreneurs. No approach yields a perfect fit but each can be used to glean understanding of a movement’s efforts to affect public policy. Peters says in the introduction to his text (2012, 2), “none of these approaches can fully explain all political actions.” That statement well summarizes the underway efforts at policy formation by the policy entrepreneurs of the women’s topless movement.
This study of the topless movement at its current stage illuminates a different illustrative, light-hearted, approach that describes a movement utilizing all available means to affect public policy. We could describe these entrepreneurs’ actions using the "Gelatinous
Blob Theory (GBT)." Like The Blob, illustrated in the 1958 film (Simonson, Linaker &
Women’s topless movement 24 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
Millgate), the social movement appears to press in all directions seeking paths of least- resistance. As it presses outward, it devours items in its path and growths. If the path of least resistance is case law, that is the path it will try. If it is statutory law, the blob, or movement, will try to capitalize down that path. If alliance opportunities emerge, it will seize the opportunity. It simply does not care and behaves as though its conscious thought about strategy is simply to press forward as needed. Its task is to push and grow. Using this analogy, a social movements success might seem inevitable. It is not. It depends upon the blob’s ability to maintain momentum. Which fits well with theories of public policy and theories of social movements. Momentum depends upon resources and enthusiasm, which themselves depend upon energy and enthusiasm in a compounding manner. The task of the opposition then is to either direct the blob toward least-harmful, paths and work, or perhaps just hope, that the blob will lose momentum, wither and eventually die or to find some way to
“freeze” the blob and hope it never thaws (spoiler alert; the conclusion of the film). The least-harmful paths are those directions which provide the fewest resources or sources of enthusiasm for the movement, or the blob.
Discussion
The women’s topless movement is an ongoing untethered movement of policy entrepreneurs independently operating to affect public policy. The shared goal is equality in the perception of men and women sexually. Put differently, the task is to affect public policy
Women’s topless movement 25 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal to create space to change norms. Yet, norms are the major obstacle to policy formation. A
February, 2019 New York Times piece describing a New Hampshire Supreme Court decision succinctly illustrates the challenge the movement seeks to overcome (Jacobs):
The New Hampshire attorney general’s office, in defending the city’s 1998
ordinance, argued that the law is applied fairly to men and women
because the body parts expected to be covered up are based on social
norms. The city is simply trying to prevent public disturbances, the office
argued.
An important aspect of studying, and presenting about, an ongoing effort is that the study itself has the potential to illicit behavioral response. This study has effectively illuminated strengths and weaknesses of these policy entrepreneurs’ strategy. However, this might serve both proponents and opponents of change.
Women’s topless movement 26 4th International Conference on Public Policy (ICPP4) June 26-28, 2019 – Montréal
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