By GAIL OBER, LACONIA DAILY SUN
LACONIA — The city is legally free to enact public decency ordinances, countering the claim by three women who freed their nipples on Memorial Day at Weirs Beach and were cited by police, said City Prosecutor James Sawyer said Thursday.
In his objection to a request to dismiss the case against Heidi Lilley, Kia Sinclair and Ginger Pierro, Sawyer says RSA 47:17 states that cities are authorized to pass ordinances for "order and police duty. To regulate the police of the city; to prevent any riot, noise, disturbance, or disorderly assemblages..."
Specifically, wrote Sawyer, "cities may also enact ordinance(s) to restrain and punish 'all kinds of immoral and obscene conduct, and to regulate the times and places of bathing and swimming...in the waters of the city and the clothing to be worn by bathers and swimmers.'"
He said Weirs Beach is defined as a "commons" or a piece of property set aside for public use and that the city's public nudity ordinance is relevant to this.
The three women are participants in the Free the Nipple campaign, which seeks gender equality and speaks against body shaming and their perceived rape culture that blames the victim.
Sawyer said that the defendants argue that New Hampshire is a Home Rule state, which means that a municipality cannot criminalize something not made criminal by the state, is not an applicable argument because, it that was correct, "(it) would render all police power ordinances unnecessary or a mere duplication of statutory mandate."
Using zoning as an example and citing case law to support it, Sawyer said that one set of rules may work for one community but not another because of their individual characters, geography, identity, current community standards and morals.
He said if the state legislature didn't want individual communities to regulate the common areas of their town, then the city couldn't make rules regarding operation hours for libraries and parks or to prohibit using bicycles, rollerblades or other similar items at Smith Track.
Sawyer said there is nothing in state law that stops the city from passing an ordinance on public nudity or exposing female nipples in public.
He said there is no actual conflict between state law and Laconia's ordinance because conflict only occurs when a municipal ordinance allows "that which a state statute prohibits and vice versa."
As for Lilley's, Sinclair's and Pierro's claim that the ordinance violates the Equal Protection Clause, Sawyer said that equal protection demands "that all persons similarly situated should be treated alike."
"The male body and the female body are different," wrote Sawyer, adding that the Equal Protection Clause doesn't pretend that men and women are the same.
He said the U.S. Supreme Court "'has consistently upheld statutes where the genders classification is not invidious, but realistically reflects the fact that the sexes are not similarly situated in certain circumstances.'"
Regulations such as the public nudity ordinance, Sawyer said, have an important government objective which is to protect the public's sensibilities..., which is an objective based not on cultural stereotypes but on "real 'physical difference between the sexes which have implications for the moral and aesthetic sensitivities of a substantial majority of the country.'"
As to whether Laconia's ordinance violates the First Amendment Rights to self expression and free speech, Sawyer puts it to a four prong test, namely that it is within the city's right to enact it; that it furthers an important government interest, that the city's interest is unrelated to free expression and the restriction is no greater than is essential to Laconia's interest.
Sawyer said the ban on exposing nipples has nothing to do with suppression of free speech saying that other courts have said they "cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech."
He said Laconia's ordinance seeks to prevent the public health, public safety, morals and public order and also prevents the secondary effects of increased crime and reduction of property values.
He said the movement is not inhibited its participants having to cover their nipples.
"The are able to advocate the benefits of nude sunbathing albeit while fully dressed," he wrote, quoting a ruling from Florida.
Trial is scheduled to begin today (Friday) at 8 a.m. in the 4th Circuit Court, Laconia Division.
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