Free the Nipple case tossed, toplessness is not a crime

Judge: Constitutional issues not relevant to demonstrators’ case

By Gail Ober

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.

Bill Clinton draws crowd at LRCC

By Michael Kitch

Bill Clinton, whose presidency included a growing economy and balanced budget, told a crowd at Lakes Region Community College, “We can do it again!” by electing his wife, Hillary. (Michael Kitch Photo/Laconia Daily Sun

LACONIA — "As you can tell I haven't had a lot sleep," Bill Clinton began. "When you win by a landslide you go to be early. You win by a little and you stay up."
Hours after his wife, Hillary, barely edged Bernie Sanders in the Iowa caucuses, the 42nd president was back on the stump, speaking on her behalf to an overflow crowd at Lakes Region Community College last evening.
"Her first instinct," Clinton said, "is always what can I do to make it better for somebody else." Drawing the contrast with Sanders, who calls for "a political revolution," he said that the course of American history demonstrates that more is achieved by "progressive reform" than by revolution.
"We are where we are," Clinton said. With maldistribution of income and wealth, coupled with flat and falling wages, he continued, "the golden door to the future feels closed to most Americans." Younger people, saddled with debt and searching for work, are apprehensive, he said, while the scourge of drugs and threat of terrorism are "driving us crazy."
For those who believe in the power of government, Clinton said, the task is "to make the private economy work better for everyone, to raise incomes and reduce inequality." At the same time, he said "we must provide safety, security and peace without giving up our values."
Hillary, Clinton stressed, has a history as a progressive reformer stretching back to when she left law school to work on behalf of women and children in several southern states then, when he became governor of Arkansas, to become the architect of educational policies that improved the performance and prospects of schoolchildren throughout the state. He recalled that during his presidency, Hillary's effort to reform health care failed, but she partnered with Sen. Ted Kennedy to introduce the children's health insurance program, which drew support from 75 Republican senators.
Clinton defended Hillary against the charge that she is too close to Wall Street by pointing out that she warned the banks about their reckless lending and investment practices before the financial crisis and contributed to enacting stiffer regulation. While Sanders calls for breaking up the big banks, he said that the government already has that authority, but claimed that the shadow banks, which Hillary seeks to regulate, pose the greatest risk.
While Sanders would provide fee college tuition to all, Clinton said that Hillary prefers to pay the tuition — and all other expenses – of those in greatest need, but let those with sufficient means pay some or all of their own costs. Meanwhile, she would make it possible to refinance existing student loans to ensure all debt is manageable.
Clinton said that the Affordable Care Act has provided some 90 percent of Americans with health insurance and is approaching goal of universal healthcare set by President Harry Truman in 1947. Rather than start from scratch to create the single-payer system Sanders favors, he said that "it's easier to go from 90 percent to 100 percent than from zero to 100 percent."
Hillary's response to the crisis arisen over lead in the water of Flint, Michigan, Clinton said reflects her differences with Sanders. When the mayor told her he was only given 10 percent of the funds required to address the crisis, Hillary spoke about it on television and the money was forthcoming. "Bernie's heart was in the same place, " Clinton said. "He was mad. He called for the governor to resign."

Three escape Belmont house fire Saturday

By Gail Ober

Staff Reporter

BELMONT — Three people escaped serious injury Saturday afternoon after a fast-moving fire of indeterminate origin gutted the top floor of their home at 110 Elaine Drive. The fire was reported at 1 p.m. and firefighters stay on the scene until 4:10 p.m.

Fire Chief Sean McCarty said the homeowner initially tried to extinguish the fire with a garden hose and singed some hair.  Two other adults escaped the home with minor smoke inhalation. All three were evaluated but not taken to the hospital.

Two cats and one reptile were saved by firefighters. A second reptile died.

McCarty said the first engine that arrived was from Laconia because Belmont crews were returning from a medical call. A supervisor on the Belmont ambulance arrived, saw heavy black smoke coming from the upstairs and call for a first alarm. When conditions didn't improve, firefighters called for a second alarm.

McCarty said the home was equipped with smoke detectors. He said damage is estimated to be about $100,000 but believes the home is repairable.

CUTLINE: Firefighters from Belmont and surrounding communities battle a two-alarm fire Saturday Saturday afternoon on Elaine Drive. Officials said the home sustained about $100,000 in damage. (Laconia Daily Sun Photo - Gail Ober)

Firefighters from Belmont and surrounding communities battle a two-alarm fire Saturday Saturday afternoon on Elaine Drive. Officials said the home sustained about $100,000 in damage. (Laconia Daily Sun Photo - Gail Ober)