Judge: Constitutional issues not relevant to demonstrators’ case
By Gail Ober
THE LACONIA DAILY SUN
LACONIA — The case against two women who went topless at Gilford Beach on Labor Day weekend as a statement about gender inequality and body shaming has been dismissed, but only because there are no state laws prohibiting it.
Judge Jim Carroll of the 4th Circuit Court, Laconia Division said in his five-page ruling dismissing the violation against Heidi Lilley of Gilford and Barbara McKinnon of Rumney that the town cannot make something a crime that the state doesn’t define as one.
“The Court finds that the township lacked authority for a criminal prosecution which is neither prohibited by the [c]riminal [c]ode nor by statute or enabling legislation,” Carroll wrote, rendering the enforcement of the Gilford Town Beach ordinance impossible unless the state makes exposing the entire female breast a crime.
Lilley and MicKinnon are both active participants in Free the Nipple, a campaign stemming from a 2014 movie of the same name, which is an equality movement that says women should be treated the same way as men when is comes to exposing the top parts of their bodies. The campaign also addresses what it calls the U.S. “body-shaming mentality.”
Free the Nipple came first to New Hampshire at Hampton Beach last summer when women and men set a day to come to the beach topless. While covered extensively by the media, turnout on the part of demonstrators and those who came to either gawk or show support was literally washed out by a cold summer rain.
Lilley and McKinnon brought the campaign to Weirs Beach on Labor Day weekend because Laconia is the only community in New Hampshire that has an ordinance that prohibits toplessness in public. Although six or seven women went topless at Weirs Beach on Sept. 6, city police declined to take the bait and, absent any citizen complaints, the event was unremarkable.
When the city cleared the beach to set up for the fireworks display that evening, the women decided to go to Gilford Beach. At least three complaints were filed, Gilford Police responded and all of the women covered their breasts when asked to do so. Police issued two complaints for a violation of the town beach ordinances.
Lilley and McKinnon had mounted a three-way argument in their motion to dismiss the violation.
First, they argued Gilford’s ordinance was a violation of their First Amendment rights of freedom of expression and the Fourteenth Amendment right of equal protection under the law. Second, they argued it was discriminatory under state law, and third that, since it was not prohibited by state law, local governments cannot exceed that authority.
While prevailing on the last argument, they struck out on the first two.
As to federal and state constitutional protections, Carroll said a specific New Jersey case cited by the state was applicable here because prohibiting toplessness “met constitutional muster since it gave a person of ordinary intelligence fair notice of the nature of the prohibited conduct,” and that it took into consideration the customs and mores of the applicable society – in this case – Gilford Beach.
He agreed with the New Jersey justices who said that toplessness is not a substantial level of “constitutionally protected conduct.”
Carroll said the ordinance against toplessness at the beach was to be considered under “strict scrutiny” in that it has a specific purpose and the town had compelling reason to pass it.
He said the “compelling interest” is that Gilford Beach is a town resource that is to be enjoyed by “young and old, men and women, families and single persons” while preserving appropriate standards that allow the town to maintain its local values and mores.
Carroll eschewed Lilley’s and McKinnon’s argument that the right to be topless is the same thing as the right to marry. He said marriage is a basic civil right while toplessness is not.
As to Lilley’s and McKinnon’s argument that their conduct “involved expression and politic speech and has artistic value,” Carroll said appearing topless doesn’t rise to that occasion.
When deciding if Lilley and McKinnon were victims of discrimination as defined under state law, Carroll said they weren’t because they weren’t denied access to the beach but rather their conduct was regulated while they were there.
Reached for comment, Lilley was not happy with the ruling and said she would need to consult with her lawyer to see what the next step would be.
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