By GAIL OBER, LACONIA DAILY SUN
LACONIA — A local judge said Monday that the city ordinance against exposing female nipples in public is authorized by state law and has ruled against dismissing the city's citations against Heidi Lilley, Gina Pierro, and Kia Sinclair.
Judge Jim Carroll of the 4th Circuit Court, Laconia Division said that he agrees with the city's argument that RSA 47:17, XIII gives city's the right to to regulate "times and place of bathing and swimming...in the water of the city and the clothing to be worn by bathers and swimmers."
He said the above state law that the "(Laconia) ordinance is neither invalidated nor repugnant by legislative authority preemption in RSA 645:1."
RSA 645:1 is New Hampshire's indecency law, which does not prohibit the baring of female breasts in public and because of that statute, he earlier ruled a similar ordinance at Gilford Town Beach is unenforceable because what the state legislature doesn't criminalize can't be made criminal by a town.
Lilley, Pierro, and Sinclair were arrested on Memorial Day Weekend in 2016 for appear topless on Weirs Beach as a demonstration of the Free the Nipple Movement, which they say advocates for equal treatment of women and men and for the desexualizing of the female breast. The charges against them are now still pending.
Carroll's ruling, in his words, involved actions that were "similarly factual to several cases that involved the township of Gilford earlier."
Key to Carroll's decision are the words "township" and "city council." RSA 47:17, is specific to cities only and does not include townships, which are governed by RSA 41:11.
Like he did in the Gilford case, Carroll also ruled that Laconia's ordinance does not violate the equal protection clause of the 14th Amendment in that all people are not being treated equally.
He said that in Laconia's case, "All women who wish to be present in a 'public place,' which includes 'any public street, way, alley, parking area, park common, beach or other property or public institution of the city," must be properly clothed.
"The subject ordinance creates no violation of the Equal Protection clause as it treats all females equally," Carroll wrote.
As to the argument presented by Lilley, Sinclair, and Pierro that exposing their breasts at the beach is artistic expression and is protected as free speech, Carroll against disagreed, much like he did in the Gilford case.
They argued that their artistic endeavors are the same as those in "Hair," a musical in which actors appeared naked at the end of the play.
Carroll said that in "Hair," the argument was that certain municipalities limiting access to public property were acts of "prior restraint." In this case, Carroll said that women were not prohibited from using public property but only limiting the manner in which it is used. He said none of the defendants are prevented from advocating for female toplessness at the beach or anywhere else.
"The ordinance is not content based, but is conduct based," wrote Carroll.
When reached for comment, attorney and state Rep. Daniel Hynes said that there is still a trial to be held but if his clients are found guilty, then they will appeal Carroll's recent ruling to the state Supreme Court.
Laconia City Attorney Jim Sawyer said he is pleased with Carroll's ruling but also said he wouldn't be surprised to see it appealed to the higher court.
Heidi Lilley (seated), Kia Sinclair and Ginger Pierro were at a hearing to dismiss charges from Laconia Police for going topless on Weirs Beach on Memorial Day weekend. (Gail Ober/Laconia Daily Sun)
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