By GAIL OBER, LACONIA DAILY SUN
LACONIA — For the second time in as many years, Judge Jim Carroll of the 4th Circuit Court, Laconia Division will have to decide if women can remain arrest-free after freeing their nipples at Weirs Beach in Laconia.
Heidi Lilley of Gilford and two of the members/supporters of the Free the Nipple movement, Kia Sinclair and Ginger Pierro, were cited by city police for appearing topless at Weirs Beach over Memorial Day Weekend in 2016 after police said they received a complaint, and last week filed a motion to dismiss the charges.
City ordinances prevent women from exposing the nipple portion of the breast in all public places.
Attorney Daniel Hynes represents all three and has called the Free the Nipple Movement a campaign against female oppression and censorship. In his request to dismiss the case against his clients, Hynes notes that until 1936, all people were prevented from appearing shirtless or topless in the United States. To date, he said there are still 37 states that have laws preventing female toplessness.
New Hampshire is not one of them.
Hynes said that two attempts by the state legislature to change the state law to prohibit the exposure of female nipples in public during the past legislative session failed.
His approach to his clients request for dismissal is two-pronged. The first is that since the state of New Hampshire is not a "Home Rule" state, anything that is not made illegal by the state cannot be made illegal by an individual community.
This was the basis for Carroll's dismissal of a similar violation faced by Lilley and Barbara McKinnon that stemmed from a topless experience at Gilford Beach on Labor Day in 2015.
Hynes' second prong is that the United States and New Hampshire Constitutions prevent discrimination against people by race, creed, color, gender and national origin.
He asked the court to determine that Laconia's ordinance violates those basic civil rights and to issue an injunction against enforcing it in the future. Hynes said that should the city wish to continue with preventing female toplessness, the only fair and constitutional way to do this is to prevent toplessness for all people, including men.
Hynes said the Free the Nipple Movement is also protected speech under the First Amendment of the U.S. Constitution.
"By appearing topless in public, (the) defendant(s) engaged in speech and expression deserving of constitutional protection," he wrote. "(The) defendant was not just utilizing her right to be topless under state law, but to demonstrate to others her political viewpoint and message that the female nipple is not a sexual object."
Hynes wrote that the defendants seek to bring a message of gender equality and how the female nipple is treated differently than that of a man.
Hynes also said that artistic expression involving nudity as part of expression has been given First Amendment protections.
"To be considered obscene and outside of First Amendment protections, the government must prove that the work, taken has a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political or scientific value," he wrote, quoting a case from the U.S. Supreme Court.
It was this prong of the argument that Carroll failed to adopt when he dismissed Gilford's case against Lilley and McKinnon in 2015.
In that ruling, Carroll agreed with the New Jersey Supreme Court, which said 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.
He also determined that the town of Gilford didn't discriminate against Lilley and McKinnon because they were not banned from the beach.
As to the Laconia ordinance, it's unusual in that it was passed in the late 1980s in part to stem the tide of harassment of women at the annual Motorcycle Week rally. Not only does Laconia's ordinance prohibit the exposure of the female breast, it prohibits anyone from encouraging or harassing someone to public display their nipples.
Laconia Police Prosecutor Jim Sawyer said he will file his counter argument as early as Thursday.
The case is scheduled for trial on Friday morning but a clerk said while the trial won't happen, there is a chance the judge will hear oral arguments on the request from dismissal from both sides in the time slot reserved for the trial.