graphic of Free Speech in State Legislatures

New Hampshire Supreme Court upholds city ordinance banning toplessness for women – February 2019

Laconia, NH

In 2016, three women in Laconia, New Hampshire, which sits between two lakes, went topess to a local beach to push back on the city’s ordinance banning women from going bare-chested in public. The trio were arrested, charged with indecent exposure, and fined. They eventually appealed their case to the state Supreme Court, arguing that the law was rooted in gender discrimination and violated their Free Speech rights. The court disagreed, asserting that the women were properly charged and upholding their convictions.

Key Players

Ginger Pierro, then 27, was arrested on a beach in Laconia for doing yoga with her breasts exposed in May 2016. When officers approached her, citing complaints about her partial nudity and repeatedly asking her to put on a top, Pierro refused, according to the New York Times. Pierro is also part of the “Free the Nipple” campaign, which describes itself as standing  “against female oppression and censorship” and seeks to normalize and legalize women’s toplessness.

Heidi Lilley and Kia Sinclair launched a New Hampshire wing of the “Free the Nipple” movement in 2015, according to the Times. In May 2016, Lilley, then 55, and Sinclair, then 24, noticed Pierro’s arrest and, three days later, also went topless to a local beach, quickly drawing the attention of police, who asked them to cover themselves up. The women refused and were promptly arrested (Lilley had been arrested in 2015 for a similar incident).

Further Details

Both Lilley and Sinclair testified in court that their actions were meant to take a stand against what they saw as an unfair regulation. According to the court ruling, Sinclair said that she was “protesting [Pierro’s] case where she had been arrested a few days prior.” Lilley testified that she “announced to the arresting police officer that [she] was acting in a protest and that [she] did not believe that [she] could be arrested for protesting.”

Pierro, Lilley, and Sinclair were each fined $124, which was suspended for good behavior, according to Dan Hynes, the attorney who represented them.

The law in question criminalizes “the 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.” In this way, Laconia’s ordinance is much more specific than New Hampshire’s general prohibition on public nudity.

The women’s protest against the policy was rooted in their belief that it is based on gender, that it penalizes women’s toplessness but not men’s. They are also seeking to mitigate the hypersexualization and subsequent stigmatization of women’s breasts, according to Sinclair and Lilley.

“It’s pathetic how highly sexualized a woman’s breast is,” Lilley said in an interview with the New York Times. “I thought that it was necessary that we make a change to that.”

Defenders of the ordinance, including the New Hampshire attorney general’s office, argue the city is merely trying to prevent public disturbances by asking women to cover body parts that society expects to be covered, the Times reported.

After their arrests, Pierro, Lilley, and Sinclair moved to dismiss their charges in New Hampshire’s Fourth Circuit Court, arguing that the ordinance violates both their rights to equal protection and their Free Speech rights. Moreover, the women argued that the city lacked  the authority to enforce the policy, which they said was preempted by the state’s public indecency law. The court denied their motion after a hearing, leading Pierro, Lilley, and Sinclair to appeal the decision to the state Supreme Court.

Outcome

New Hampshire Supreme Court upholds convictions, defends city ordinance

In February 2019, the New Hampshire Supreme Court upheld the convictions of Pierro, Lilley and Sinclair, saying in a 3-2 ruling that the local ordinance in question was not discriminatory. Rather, the court argued, societal conventions holding that women’s breasts are more sexual than men’s justify the logic behind the ordinance.

Dissenting opinions, however, found the law to be gendered in how it is applied: “If a woman and a man wear the exact same clothing on the beach,” one associate justice wrote in his dissent, “the woman is engaging in unlawful behavior — but the man is not.”

That said, the majority decided that the ordinance was not a violation of Free Speech, saying the defendants’ partial nudity “did not constitute protected speech” and that the ordinance does not constitute viewpoint-based discrimination, but is rather “a general prohibition on public nudity.”

External References

‘Free The Nipple’ Leader Headed To Court Over Topless Sunbathing Ticket, AP

New Hampshire Women Lose State Supreme Court Battle to Go Topless, New York Times

‘Free The Nipple’ Topless Women Arrested At NH Beach Lose Court Fight, AP

THE STATE OF NEW HAMPSHIRE v. HEIDI C. LILLEY; THE STATE OF NEW HAMPSHIRE v. KIA SINCLAIR; THE STATE OF NEW HAMPSHIRE v. GINGER M. PIERRO

Prepared by Maya Gandhi ’20

Uploaded March 10, 2019