Judge Dismisses “Free The Nipple” Charges on Technicality, Issues Prudish Order

In the Summer of 2015, Heidi Lilley and B. Liz MacKinnon were ticketed on Gilford beach in alleged violation of the town’s ordinances. In late December, they went to trial at Laconia district court and Free State Project early mover and attorney Dan Hynes put on an excellent defense. Judge James M. Carroll took the case under advisement and has now issued his six-page order: both cases are dismissed!

Don’t get too excited. If you read the order, you’ll find that Judge Carroll is no hero of constitutional rights or equality. Page three of his order ridiculously cites the private Motion Picture Association of America’s ratings system as evidence of a supposed “societal desire” to regulate female toplessness. Carroll argues that because the state’s three prudish witnesses (the three snitches) don’t appreciate female toplessness and because the town gave notice of the existence of the ordinance, that somehow means the town ordinance doesn’t violate the Equal Protection Clause of the US Constitution or Article 1 of the NH Constitution’s Bill of Rights.

Given that Article 1 only mentions men when it says, “All men are born equally free and independent”, is it Judge Carroll’s opinion that only men were born free and that women can be told what to wear, for the good of “society”? He’s not foolish enough to come right out and say that, but his order does make excuse after outrageous excuse for the town’s ordinance, claiming it’s constitutionally sound:

The township’s compelling interest is met in maintaining the beach as a natural resource to be enjoyed by young and old , men and women, families and single persons while preserving appropriate standards that allow the township to maintain their local values and mores…The Court does not find that the prohibition violates any constitutionally protected right…the movement “does not have ‘a right to impose one’s lifestyle on other who have an equal right to be left alone.

So, if the social mores were that all women must wear burqas, because seeing any skin at all bothered people, it sounds like Carroll would consider that mandate constitutional as well.

Though Carroll defends the right to marry either gender, he says that such marriage is a protected right, while toplessness is not. On the final page, he claims the toplessness in this case had no artistic value, while on page three he acknowledges the female nipple “has been the subject of great beauty in art”. Apparently Carroll is an art critic now, too.

Ultimately, Carroll decides the case in the favor of the defendants, but not on the excellent constitutional or equal protection arguments made by attorney Hynes, but simply on a technicality of the system:

Finally, the Defendants argue that the township is without authority to criminalize the actions of the Defendants as it is beyond the jurisdiction granted in RSA 41:11 . The Court finds that the township has the authority to “regulate” the use of the real property owned by the town.

RSA 41:11 says that towns can regulate town-owned property, but Carroll says that without specific state statutes authorizing towns to criminalize toplessness, it can’t be considered a “violation” for the women to be toplessness, even though he claims the ordinance is constitutional. Carroll cites RSA 625:6&9V to justify his position that since the “indecent exposure” statute, RSA 645:1, doesn’t outlaw female toplessness, the cases must be dismissed.

MacKinnon said in a post on the “Free The Nipple” facebook group, “This is, to be clear, the ruling we DID NOT want” and is already planning this Summer’s topless activism in Gilford. Hynes stated in an interview for Free Keene that he’s disappointed the judge found the ordinance constitutional and is considering what the next steps will be.

While Lilley and MacKinnon’s cases are over due to the dismissal (meaning the judge’s ridiculous decisions on constitutionality can’t be appealed, as I understand it), the prudes in the legislature are looking to turn female toplessness into a misdemeanor, which could be punished by up to a year in jail. Hopefully the horrific bill will go down in flames. We’ll keep you in the loop here at Free Keene.

Besides the good news of the dismissal, the other news here is that Carroll may have created case law that could help overturn other illegal ordinances on the town level with his decision. That’s really the only good thing his order does, upholding the idea that NH does not have “home rule”. Home rule would allow towns and cities to create any ordinances they wanted, supposedly within constitutional bounds, which helps keep local government from growing out-of-control, and in this case, resulted in these cases being booted. It’s a win, but not the one the ladies were hoping for.