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Laconia judge says topless Free the Nipple protesters not protected by First Amendment

  • Kia Sinclair stands topless on Hampton Beach in 2015. She was one of three women associated with the Free the Nipple campaign charged for being topless on Weirs Beach in Laconia this May. AP file



Monitor staff
Monday, November 21, 2016

Free the Nipple activists who won their case after being cited for toplessness last year in Gilford may not be faring as well against remarkably similar charges out of Laconia.

The first violation was thrown out when a Laconia District Court judge ruled that Gilford had no authority to prosecute without a state law criminalizing female toplessness. But the Laconia prosecutors cited a different enabling statute, which Judge James Carroll agreed gives the city regulatory powers.

Carroll ruled against a motion this week arguing three topless protesters in Laconia – Heidi Lilley, Kia Sinclair and Ginger Pierro – were protected by the First Amendment and were discriminated against by a rule that requires women to cover their nipples.

The three women, who are associated with the national Free the Nipple campaign to desexualize women’s breasts, were cited for sunbathing topless at Weirs Beach over Memorial Day in violation of the Laconia ordinance. They each face a $250 fine.

Their attorney, Dan Hynes, filed a motion to dismiss the charges in October. In an order dated Sunday, Carroll decided the charges can go forward, saying there’s an important government interest, “safeguarding the public’s moral sensibilities,” achieved by restrictions on the exposure of women’s breasts.

The case will now go to trial. If the women are found guilty, which Hynes said is likely to happen based on the judge’s ruling, the attorney said he intends to appeal to the state Supreme Court.

In a remarkably similar case last year, Hynes successfully defended Lilley and Sinclair against charges brought by the town of Gilford. Also presiding over that case, Carroll threw out the charges because, he said, without a state law criminalizing the women’s behavior, the town lacked authority for prosecution.

In the Laconia case, however, the prosecutors drew from a different section of state law for their authority, one that allows regulation of “times and places of bathing and swimming in . . . the waters of the city, and the clothing to be worn by bathers and swimmers.” It’s a section of RSA 47:17 pertaining to “vagrants” and “obscene conduct” that Hynes said he believes is unconstitutional.

“I don’t think the Legislature intended for towns to be using it in this way,” he said, adding that, in addition to defending his clients, he’d seek legislation to repeal the statute.

Carroll disagreed on the issue of constitutionality, saying that the ordinance doesn’t violate the Equal Protection Clause of the Fourteenth Amendment because it treats all women equally and achieves an important interest.

“The prohibition against females baring their breasts in public, although not offensive to everyone, as shown by the testimony of all three witnesses in this case, is still seen by society as unpalatable,” the ruling states.

The judge also struck down a secondary argument stating that the women’s actions should be protected as free speech under the First Amendment.

“There is no evidence that the ordinance inhibited the effectiveness of their ability to express their opinion,” the ruling states. “Their conduct was restricted, but they were not prohibited from lobbying on the beach or with beach goers as to their agenda.”

For Hynes and the New Hampshire activists with the Free the Nipple movement, a guilty verdict may be just what they need to challenge gender-based toplessness laws at the state Supreme Court level.

When the Gilford charges were dropped, Hynes said he attempted to appeal anyway to the Supreme Court to challenge the constitutionality question, which Carroll upheld. The high court didn’t accept his appeal, Hynes said, probably because it was “moot.”

“Should there be a guilty finding” in the Laconia case, Hynes said, “I expect that finding will be appealed to the New Hampshire Supreme Court. They do automatically hear those sorts of appeals.”

(Nick Reid can be reached at 369-3325, nreid@cmonitor.com or on Twitter at @NickBReid.)