‘Free the Nipple’ case goes before judge

By GAIL OBER, LACONIA DAILY SUN

LACONIA — A local judge has to decide whether freeing the female nipple threatens the health, public safety and the morals of the community as claimed by the city prosecutor or whether the current ordinance against topless women is a "heckler's veto" passed to mollify those morally opposed.

In the hearing on the motion to dismiss heard Friday in the 4th Circuit Court, Laconia Division, the court heard testimony from defendant Ginger Pierro, who said she was at Weirs Beach on Aug. 28 topless while doing yoga on a beach towel. One of her male friends photographed her there.

Pierro said she was verbally harassed by people and said she felt their anger was not because she was topless but because she was "enjoying herself." She said there were children there, including her own.

A man from Concord who was testifying for the state said he called the police because a woman was there with her nipples exposed and a man was taking pictures. Under cross-examination, he said he wasn't concerned for his safety but was more concerned with the man who was taking pictures.

Two Laconia police officers also testified that they were called to the beach because there was a topless woman there who was doing yoga. Both said they approached Pierro, who ignored them until they threatened to arrest her.

Defendants Heidi Lilley and Kia Sinclair said they were at Weirs Beach topless on May 31 to protest the Pierro's arrest. A woman called by the prosecution testified that Sinclair walked past her and was not wearing a shirt. She said she felt it was inappropriate and that her feelings were based on religion and the way she was raised.

Lilley and Sinclair were also arrested and cited.

Many of the questions asked by the defense attorney Daniel Hynes were about the nipple itself, and the inherent differences between male and female nipples.

Both police officers, one male and one female, testified that they could tell the difference between a man and a woman. When it actually came to the differences between male and female nipples, Prosecutor Jim Sawyer protested during the testimony of Sgt. Ben Black, saying Black is not a medical expert and Hynes had not laid a proper foundation for that particular line of questions.

Black, who was actually a defense witness, testified that if Pierro had had a piece of tape over her nipples he would have had no reason to arrest her. He also said that he can "always" tell the difference between a man and a woman.

Office Holly Callanan, who was a prosecution witness, testified that when she arrived at the beach, her cruiser was met by some people who told her about Pierro practicing yoga on the beach without wearing a top. She said she can "usually" tell the difference between a man and a woman, especially when they are not wearing tops.

She said she could definitely tell Pierro was a woman, despite her slight athletic build and showed the court where she had entered "F" in the appropriate box on the citation form.

Both officers testified that they would uphold the law regardless of whether they individually agreed with it. Callanan said she didn't feel threatened by the situation but said Pierro's behavior "caused attention to be drawn to her."

What Judge Jim Carroll must decide, for the second time, is whether or not the city had a right to pass the ordinance in 1998 in light of the fact that New Hampshire is not a "home rule" state and that exposing the female nipple is not prohibited by state law. This is Hynes's argument.

Sawyer's argument is that there is no state law preventing Laconia from enacting the ordinance.

Carroll will also rule on whether or not the city ordinance violates the Equal Protection Clause and the First Amendment right of free speech.