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Supreme Court hears challenge of 'no-nipples' law

By SHAWNE K. WICKHAM
New Hampshire Sunday News

February 01. 2018 7:33PM
Heidi Lilley and Barbara MacKinnon, Free the Nipple activists, listen to court testimony on Dec. 28, 2016 as they ask a judge to overturn a Gilford law forbidding topless women at the town beach last year. (Union Leader File)



CONCORD — Arguments before the state Supreme Court typically don’t include discussions of nipples, buttocks and “pasties,” but that was the nature of the case before the high court Thursday morning.

The court heard arguments in an appeal by three women convicted last year of violating a Laconia city ordinance by sunbathing topless at Weirs Beach.

Heidi Lilley of Gilford, Kia Sinclair of Danbury and Ginger Pierro of Canaan are supporters of the “Free the Nipple” movement, contending that laws that only ban exposing female breasts are discriminatory.

Their lawyer, Daniel Hynes, told the court that the city of Laconia “has criminalized being female.”

“I’m not aware of any criminal statute in New Hampshire where an element of the offense that the state must prove is that the defendant is a certain sex,” he said. “I suggest that’s unconstitutional and, really, immoral.”

Hynes said the district court erred in ruling that the equal protection clause is not triggered in such matters because, in essence, all women are treated the same under the ordinance and all men are treated the same.

Under that reasoning, he said, the state could go back to the days of separate water fountains for different races.

Laconia’s public decency ordinance prohibits “showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple.”

Associate Justice Robert Lynn asked Hynes what disadvantage that gives women.

“They were prohibited from being on a beach, which I would suggest is a public accommodation,” Hynes replied.

“Only if they didn’t cover up,” Lynn said. “If I’m a woman and I have to cover up to go to the beach, what’s the practical disadvantage to me of that?”

Susan McGinnis from the Attorney General’s office, who presented the state’s case, said it’s “a matter of public safety and morals.”

She noted that state laws distinguish between male and female breasts when it comes to sexual assault, public decency and privacy. “Those statues give women protections that they don’t give to men because they define women’s nipples as sexual or intimate parts and do not do so for men,” she said.

Senior Associate Justice Gary Hicks asked whether the ordinance could be viewed as “proper expression of community morals.”

What if a community decided it didn’t want gay people on the beach, Hynes countered. “I don’t think the court would hesitate to strike down that.”

Justice Anna Barbara Hantz Marconi noted that “one of the arguments for this ordinance is protecting the women.” But she asked, “Is that an overreach, perhaps, by the Laconia council, protecting women from themselves?”

Not from themselves, McGinnis said.

“Harassment and sexual assault increase when women are topless, and therefore there’s a public safety issue involved, in order to protect women,” McGinnis said, adding that such incidents “increase exponentially” during Motorcycle Week in Laconia.

Hynes argued it’s not a safety issue, noting Laconia is the only place in New Hampshire with such an ordinance. Every year, “Free the Nipple” advocates hold a protest at Hampton Beach without incident, he said.

“I suggest the safety issue in this case is because the city of Laconia actually made it a crime,” he said.

“It’s essentially a heckler’s veto,” Hynes said. “Where if I don’t like someone, I disapprove of them morally, I could start threatening them and then they’re the ones who get in trouble.”

Associate Justice James Bassett noted that the city ordinance also prohibits showing one’s buttocks.

“And it would seem to me that would make all thong bathing suits illegal,” he said. “Should that be an issue or problem for us?”

McGinnis replied that it’s not an issue the justices need to consider, since she’s never heard of anyone getting arrested for wearing a bathing suit.

All the women had to do to comply with Laconia’s ordinance was to wear “pasties,” she said.

“Quite frankly, they could wear pasties that look like nipples, under this ordinance.”

“Don’t mores and sensibilities evolve over time?” asked Bassett. “Back in the 20s, it was illegal in 35 states for men to appear on the beach exposing their upper half.”

McGinnis acknowledged that “times have changed” since the ordinance was adopted in 1998.

“They may need to revisit it, but that doesn’t mean it’s unconstitutional,” she said.

swickham@unionleader.com


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