Oh, Jake, I don't want to flame you, but I would like to discuss this
further.  I think you are correct in saying that in jurisdictions where
there is no law protecting breastfeeding in public, it is an activity which,
like most of our behaviour, is not specifically protected and therefore
strictly speaking, cannot be described as a "right", and which also, like
most of our behaviour, is not specifically prohibited anywhere that we know
of.

While it may not be technically correct to say that breastfeeding in public
is a right unless there is a law specifically outlawing it, I feel that
perhaps your response might swing too far the other way.  You say,

"The issue is whether a state, or more accurately in any given situation an
individual police officer, makes
the judgment that public breastfeeding is 'indecent exposure.'"

I think it is easy to conclude from this statement that you are therefore
saying that breastfeeding in public *is* in fact illegal.  I think this
conclusion, if drawn, is incorrect.  Simply because a jurisdiction decides
to interpret a statute in a certain way and/or its police officers decide to
act on such an interpretation does not make an activity illegal.

The police make mistakes all the time, sometimes egregiously violating the
law
themselves.  Because they make an arrest or "counsel" someone, does not
signify that whatever the person was doing is necessarily illegal.  What
such an arrest or counselling signifies is that they *think* (or sometimes,
are acting under the pretence of thinking) that some activity is illegal.
Their judgement will be reviewed by prosecutorial staff and ultimately the
courts in deciding whether it was correct.  It is only at that stage, after
a judgement or judgements, that we can say that something is illegal or not,
and even then, we must always consider the context of each judgement and how
it applies, if at all, to the case at hand.

Part of the problem is that we are hampered by simplistic language.
Behaviour in the "grey" areas - not protected, not prohibited - should
probably not be described as either being a "right" or as being "illegal",
strictly speaking.

As lawyers we are fond of saying that we know what "the issue" is.  We
usually do, in a legal way, know what the issue is.  But "the issue" for our
clients and for the public at large is probably broader and more
complicated.  I think that by focusing on the authority of the police and
justice departments to interpret statutes, which de facto they do have,
whether or not they are correct in their interpretations, we lose sight of
several things.

One of those things is, for women who need to breastfeed in public, what are
her chances of getting arrested or even counselled for indecent exposure?
Is it realistic for her to fear getting arrested while breastfeeding in
public?  The one incident in Connecticut, where a woman breastfeeding her
baby in a car in a mall parking lot was arrested but charges were later
dropped, seems to be a definite anomaly.  There have been no further such
incidents as far as we know.  I think we can all say - even if we are
lawyers, and therefore prone to urging caution - that getting arrested for
indecent exposure or public nudity for breastfeeding in public, while
theoretically possible, is not a realistic fear.

This is not to say that shop owners, security guards, lifeguards, etc. might
not harass a woman breastfeeding in public, but this is a different matter,
of course, and has nothing to do with the legality or illegality of the
activity.

You also say,

"My fear continues to be that in practice we create women who believe that
by saying "I have the right to breastfeed everywhere I have the right to be"
they are immune from arrest and/or prosecution under indecent exposure
statutes."

With respect, I don't think there any many women who think they are immune
from arrest or prosecution.  We've all seen the cop shows, and I think it is
the rare person who doesn't appreciate the awesome power of the state to
arrest and incarcerate individuals when it chooses to.  I think almost
everyone knows that you can be arrested for creating a disturbance in
public, for resisting arrest, for trespassing on private property, etc.

If a "breastfeeding in public incident" turns ugly, then yes, the police
might be called in and the possibility that a woman will be arrested "while
breastfeeding" is increased.  But even if she is arrested, it would not mean
that she was arrested *for breastfeeding in public/indecent exposure*.  In
this case, it would be the subsequent behaviour that would be the basis of
the arrest.  Of course this would be terrible, and terribly undeserved, but
it would not be the same as an arrest for indecent exposure for
breastfeeding in public.  I think that only a general caution regarding
breaking other laws is needed here, not a caution regarding breastfeeding in
public specifically.

I think the greater problem lies not in ensuring that women are sufficiently
cautious when breastfeeding in public, as I think your post implies, but
rather in reassuring them that there is only the remotest possibility that
they will be arrested for this activity.  Many women already feel trapped in
their homes while breastfeeding, as has been said here before, and I don't
think it makes sense to reinforce those fears by speaking of remote legal
possibilities.

Right after you talk about creating women who think they are immune from
arrest and/or prosecution under indecent exposure statutes, you say,

"Here is Pennsylvania, I get calls from women who have been tossed out of
public spaces for public breastfeeding. . . .Outside of the city, there is
nothing to be done unless the mom had had the knowledge and inclination to
take a stand, challenge the offender to get a cop, and get ready to be a
test case."

We are mixing apples and oranges here.  Being tossed out of public spaces is
not equivalent to (or related to) being arrested (although it may be just as
upsetting, of course.)  And I can't agree that if a woman did want to take a
stand and be a "test case", that that would necessarily involve her
challenging the offender "to get a cop".  That would be one way of going
about it.  If the cop did come, and did arrest her, and the charge did get
to court, the case might further clarify the law, it's true.

But there are many other ways of handling the situation than challenging the
offender to get a cop.  In the legal context, filing a human rights
complaint for sex discrimination comes to mind.  If the woman involved is
not willing to take legal action, then you are right, there is "nothing to
be done", legally, anyway.  There is always political action that can be
taken, however.  She can start small by simply writing a letter to the
manager of whatever facility or property is involved.  Or she can ask her
friendly breastfeeding-lawyer to send one!  (That would be you.)

Having said all this, of course I agree wholeheartedly with your statement
that we should be educating "women on the importance of legislation
clarifying that breastfeeding related conduct is not "indecent exposure"
under the state statute and legislation providing for sanctions against
harassment of breastfeeding."  Actually, I would go further and say that we
should be empowering ourselves to make those changes and assisting the
empowerment of breastfeeding women to do the same.

Again, Jake, I regard this as an amicable exchange of ideas.  I don't see us
directly disagreeing so much as putting the emphasis on different points. I
look forward
to your further comments.

Barb Strange
Non-practicing lawyer and wife of professor of law at University of Alberta
(not flaunting my credentials or connections here, just thought in this
context they were
relevant and important to mention)

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