Outside the Beltway

New Hampshire Supreme Court Rejects Challenge To Prosecutions Of Topless Women

The New Hampshire Supreme Court rejected a challenge by three women to their prosecution for going topless on a public beach in the Granite State.

Doug Mataconis · Sunday, February 10, 2019 · 24 comments

Last week, the Supreme Court of New Hampshire handed down a decision rejecting a challenge being made by a group of women to local ordinances that make it a crime for women, but not men, to go topless in public:

For years, women across the country have rebelled against indecent exposure laws by appearing topless in public and willfully risking arrest. The campaign is known by its rallying cry: “Free the nipple!”

In a loss for the activists, the New Hampshire Supreme Court on Friday upheld the convictions of three women who were arrested for going topless on a beach in 2016.

In the 3-to-2 ruling, the court decided that a city ordinance in Laconia, N.H., that bars women from exposing their nipples did not discriminate based on gender. The majority decision cited court rulings in other states that said society’s conventions consider female breasts to be an “erogenous zone” and that the laws ban both men and women from exposing body parts that are “intimately associated with the procreation function.”

That logic is precisely what the women from New Hampshire were seeking to undermine when they showed up topless at a beach three years ago.

“It’s pathetic how highly sexualized a woman’s breast is,” said Heidi Lilley, 58, one of the women who appealed the case to the state’s highest court. “I thought that it was necessary that we make a change to that.”

On Memorial Day weekend in 2016, Ginger Pierro, one of the defendants, did yoga on a beach at Lake Winnipesaukee in Laconia without wearing a top, according to the court’s majority decision. A few police officers approached Ms. Pierro and told her they had received complaints about her “nude yoga.”

The officers asked her multiple times to put on a shirt or bathing suit top, the court decision said, but she refused. Ms. Pierro, now 30, was then arrested under Laconia’s ordinance, which bars nudity in public places, including “the showing of the female breast with less than a fully opaque covering of any part of the nipple.”

Three days later, Ms. Lilley and Kia Sinclair also went topless to a beach. Ms. Sinclair, 27, said in an interview that she became aware of the stigma attached to bare breasts after she had her first child in 2014.

“I had never thought about it until I was a breast-feeding mom,” Ms. Sinclair said. “How come men are just running around with their shirts off, mowing the lawn and going swimming, and I can’t do so when I’m feeding my baby?”

In 2015, Ms. Sinclair reached out to Ms. Lilley, a friend, to start a Free the Nipple movement in New Hampshire. Ms. Pierro’s arrest got their attention, so on a Tuesday, the two friends, both topless, sat on their blanket and beach chairs. About 20 minutes later, the police arrived and asked them to cover up.

Ms. Sinclair said that they refused, and that she pointed out that New Hampshire makes no mention of breasts or nipples in the state’s indecent exposure law. They were handcuffed and brought to a police car, she said. Inside, an officer covered her up with a towel.

Sinclair’s reading of the state law is correct in that it makes no specific mention of breasts or nipples:

I. A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.

II. A person is guilty of a class B felony if:

(a) Such person, under circumstances that may be reasonably construed as being for the purpose of sexual gratification or arousal, purposely fornicates, exposes his or her genitals, or performs any other act of gross lewdness knowing that a child who is less than 16 years of age is present.

(b) Such person purposely performs any act of sexual penetration or sexual contact on himself or herself or another in the presence of a child who is less than 16 years of age.

(c) Such person purposely transmits to a child who is less than 16 years of age, or an individual whom the actor reasonably believes is a child who is less than 16 years of age, an image of himself or herself fornicating, exposing his or her genitals, or performing any other act of gross lewdness.

(d) Having previously been convicted of an offense under paragraph I, or of an offense that includes the same conduct under any other jurisdiction, the person subsequently commits an offense under paragraph I.

Neither Sinclair nor any of the other women involved in the case decided by the Supreme Court were engaged in either of the first two activities described in Paragraph I or II, so one can only assume that the officers and prosecutor involved in arresting and charging these women consider the act of a woman taking her top off on a public beach to be “an act of gross lewdness” that would constitute a violation of the law. It’s also worth noting that there does not appear to be a definition of what constitutes “gross lewdness” in the New Hampshire Criminal Code, thus leaving the matter entirely up to the discretion of police officers and prosecutors to determine when the law is being violated. Furthermore, there does not appear to be any specific bar in New Hampshire to women going topless in public regardless of the reason.

These facts about the law bring up two relevant points that the state Supreme Court does not appear to have adequately addressed in its majority opinion. For example, it has long been a principle in criminal law that a statute that makes certain activity criminal must be clear in what constitutes a violation of the law so that, at least in some sense, members of the public are on notice in some sense regarding what constitutes a violation of the law. A law that defines a crime in a way that is far too general, or which grants law enforcement a high degree of discretion in determining what amounts to a violation of the law, on the other hand, has often been struck down on grounds of vagueness. In the past, this has been commonly applied to prosecutions against otherwise peaceful protesters exercising their First Amendment rights who were charged with violating “public peace” or some other vaguely described crime. Arguably, this argument should apply here since there is absolutely no guide in the law as to what constitutes an act of “gross lewdness,” in which case the prosecutions of Sinclair and the others should be struck down to the extent they are based on the state law.

With respect to the local ordinance under which Sinclair and the others were charged, the relevant section says this:

A. From and after the effective date of this article, it shall be unlawful for any person to knowingly or intentionally, in a public place:

(1) Engage in sexual intercourse;

(2) Engage in deviate sexual conduct;

(3) Appear in a state of nudity; or

(4) Fondle the person’s genitals or the genitals of another person.

(5) Urinate, defecate or masturbate in a public place which can be viewed by any person.[Added 5-14-2001 by Ord. No. 01.2001.01]

The ordinance also defines “nudity” as follows:

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.

The other obvious argument against the application of the law against these women is that it obviously is one based on equal protection and the fact that women are being treated differently than men. As the opinion and the news article above both establish, at the same time that these women were holding their protest, there were countless numbers of men walking around shirtless who were not confronted by police, nor were they arrested. In several other jurisdictions in the past, courts have cited this as a reason for striking down laws barring women, but not men, from going topless in public areas, or in cases such as this where the law is being applied in an obviously discriminatory manner.

In the opinion upholding the conviction, the Court relies heavily on the fact that the distinction between male and female breasts and prosecutions for public lewdness have been upheld and the majority largely basis its argument on this distinction:

We conclude that the Laconia ordinance does not classify on the basis of gender. The ordinance prohibits both men and women from being nude in a public place. See Laconia, N.H., Code of Ordinances ch.180, art. 1, §§ 180-2, 180-4. “[T]he ordinance here does not prevent exposure by one sex only.” Buchanan, 584 P.2d at 922. That the ordinance defines nudity to include exposure of the female but not male breast does not mean that it classifies based upon a suspect class. See id.; Gonya, 153 N.H. at 532. “Unlike the situation with respect to men, nudity in the case of women is commonly understood to include the uncovering of the breasts.” Eckl, 124 Cal. Rptr. at 696. The ordinance merely reflects the fact that men and women are not fungible with respect to the traditional understanding of what constitutes nudity. See id.; Sachs, 92 P.3d at 29; see also Biocic, 928 F.2d at 115-16 (noting that female breasts have traditionally been regarded by society as an erogenous zone); Buzzetti, 140 F.3d at 143 (noting that, unlike the male breast, “public exposure of the female breast is rare under the conventions of our society, and almost invariably conveys sexual overtones”); cf. Virginia, 518 U.S.at 533 (“The two sexes are not fungible; a community made up exclusively of one sex is different from a community composed of both.” (quotation and brackets omitted)).

Nor do we find that the ordinance affects a fundamental right. See Eckl, 124 Cal. Rptr. at 695. Although freedom of speech is a fundamental right, see McGraw v. Exeter Region Coop. Sch. Dist., 145 N.H. 709, 713 (2001), “[b]eing in a state of nudity is not an inherently expressive condition,” Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000). Even assuming without deciding that the defendants’ nudity in this case was expressive, not every restriction of a right classified as fundamental incurs strict scrutiny. Bleiler, 155 N.H. at 697-98.For limitations upon a fundamental right to be subject to strict scrutiny, there must be an actual deprivation of the right. Lamarche, 158 N.H. at 204; see also Estate of Cargill, 119 N.H. at 667. For the reasons discussed in Part III, infra, there was no such deprivation here. Similarly, intermediate scrutiny does not apply because the ordinance does not involve an important substantive right. Cf. LeClair, 137 N.H. at 222-23. Hence, rational basis is the appropriate standard of review for this ordinance.

As Jazz Shaw notes at Hot Air, the claims here deserve to be considered further:

The bottom line here is that the laws are supposed to apply equally to all. These laws are tailored specifically to treat women differently than men. There’s nothing unnatural about human breasts, and given the obesity epidemic the country is currently facing, I can assure you that there are some men out on those beaches with their tops off who could do with a larger cup size bra than at least one of the women who were convicted. Either the law applies to all citizens or it doesn’t.

(…)

Whether you find the idea of people going topless offensive or not, you risk running into all manner of offensive sights when you venture outside your front door. The courts have an obligation to strike down laws that treat people differently based on gender as well as race, religion and all the rest. The Free the Nipple advocates deserve their day before the Supreme Court and the justices should agree to hear this one.

The Defendants attorneys said in the wake of the ruling that their clients had not decided yet whether they would appeal the matter to the Supreme Court. If they do, though, it’s unclear whether or not the Justices would take up the matter. While the Defendants do raise arguments under the Federal Constitution, this case is basically a matter of state and local law and the Justices tend to be loath about second-guessing state Supreme Courts on such issues. Additionally, this is admittedly not a high priority legal issue and its likely something the Justices might think should be resolved by state legislatures and local authorities rather than having a single rule imposed nationwide on an issue where social attitudes may vary from state to state. After all, what’s considered socially acceptable on the beaches of California or Florida might be different from what’s considered acceptable in a more conservative state. Generally speaking, courts have been reluctant to involve themselves in such disputes.

Leaving the law aside, though, it’s obvious that the real basis for why the laws in New Hampshire and other jurisdictions are applied in what, notwithstanding the majority’s opinion, seems to be clearly discriminatory is based largely on what frankly seems like antiquated views about the human body that don’t make sense in the modern era. Based on the statutes above, for example, a woman who wears a bathing suit that leaves essentially nothing to the imagination but covers the nipples, that would not be considered to be in violation of the law. Take what passes for a top in such an ensemble off, though, and she would suddenly be in violation of the law. The absurdity of this situation, and of the puritanical attitudes about the human body that it reveals could not be more apparent. This is especially true after last week’s Super Bowl Halftime Show, during which Adam Levine, the lead singer of Maroon 5, removed his shirt during the performance and all the world was exposed to his chest, nipples and all. When this happened to Janet Jackson fifteen years ago, it led to days of controversy and complaints to the Federal Communications Commission. Obviously, the same thing isn’t going to happen regarding Levine, and that’s just a reflection of how much this country is still held hostage to its puritanical past.

Here’s the opinion:

New Hampshire Et Al v. Lill… by on Scribd