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

Free the Nipple Hampton Beach

Free the Nipple, Hampton Beach 2015

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.

Topless Tuesday, Keene's Central Square, 2010

Topless Tuesday, Keene’s Central Square, 2010

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.

Free the Nipple Hampton Beach 2015

Free State Project Early Mover Jessica Wardell, Graham Colson, and FSP Early Mover Matt Genack

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.

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16 Comments

  1. This is complete horseshit. You’re no constitutional attorney. The law treats everyone the same, based on the same criteria. There is nothing in the constitution that says “men and women are identical” nor should it.

    If you want to complain about “the violence inherent in the system” have at it. Drop the egalitarian commie bullshit, Ian.

  2. .
    It’s called “equality” under law where the government is prohibited from discriminating, treating all equal under law — in this case, the gender of the person is arbitrary and has no Constitutional basis.

    What would “same” mean anyway in a world of billions of individuals?

    Apparently “same” has no legal meaning, but you go ahead and enjoy it.
    .

  3. You know what is the saddest reflection of this whole episode? WHERE IS THE LIBERTARIAN PARTY OF NEW HAMPSHIRE ON ALL THIS? zzzzzzzzzzz Rich Tomasso: YOU ARE STILL A JOKE.

  4. On the plus side, the judge ruled that 645:1 definitely does not outlaw toplessness. Guess Jacks and his buddies did their duty, again: by using their ability to be wrong 100% of the time, and predicting that the judge would rule that toplessness was “gross lewdness,” they guaranteed that it wouldn’t happen. Thanks, guys!

  5. All these years later and the Salem witch trials are still going on?

  6. voteforcantwell, what is the “same criteria” then? What makes male and female breasts so different that they need different laws applied to them? Is it breast size? What about men who have larger breasts, or women who have little to no breasts? Is it nipple-to-breast ratio?

  7. if you really were for “liberty” you would acknowledge the right of others to seek redress for a perceived problem from the justice system; you do it all the time. Instead, you call them “snitches”, because that’s exactly what a “peace loving” person would say.

    You must wonder why no one outside of your small little group takes you seriously and dismisses you out-of-hand. Then again, your obvious narcissistic tendencies would preclude you from doing so.

  8. To Alan J…. whoever you are. ..and all who care about his reply to my comment about the LP-NH and it’s Chairman: It is simply amazng to me how, ONLY in the Libertarian Party is abject failure so well guarded and rewarded. I expect all kinds of slander from GOP stalwarts and parasites. I never followed Ron Paul back into their elephant tent back in ’90, so I must be considered some sort of traitor. Who knows? Who really cares? After seriousl economic blackballing in Nevada, I literally survived an assassination attempt back in ’02 for working religiously towards attempting to help libertarians govern SOMETHING in rural west Texas. …. the list is amazing. The slander and website hearsay lynch-mob activity for 15 years has been monumental…. which of course proves effectivness. Now that the Free State Project has reached it’s goal, and lots of young blood will migrate…. especially to Keene, I think the LP-NH will be taken over and made into something to which all can point as a model to copy. This sort of well-wishing (and to be followed by support of libertarian city council candidates)…. Does this honestly sound / read like the rantings of a troll to you?

  9. What you people are doing it great .I would love to be a part of your group. but probly not welcome because I am a registered ex sex offender .that would not be good for publicity

  10. LMHO It sounds like a douchebag troll to me, Chuck. Those links didn’t exactly cover you in glory.

    This is going to be fun using you as the newest chew toy out here.

  11. Mike AB. If I do end up showing up “out here” once again, believe me, should your ilk (and fools who blindy accept lynch-mob inspired internet hearsay as truth), attempt to use me as a “chew toy”, expect to be chewing on, and swallowing glass shards. I learned alot over the years; much the hard way…… As a result I know, into what I would be heading. I would be quite prepared…. and you won’t be.

  12. @AlanJ: “if you really were for “liberty” you would acknowledge the right of others to seek redress for a perceived problem from the justice system; you do it all the time. Instead, you call them “snitches”, because that’s exactly what a “peace loving” person would say.”

    No one has a “right” to attack and oppress innocent people. Which is precisely what they did. “Snitches” is far better than those scum deserve.

  13. “No one has a “right” to attack and oppress innocent people. Which is precisely what they did. “Snitches” is far better than those scum deserve.”

    Apparently anyone standing up for what they believe that conflicts with “liberty” beliefs is considered “attacking and oppressing”.

    “Attacking and oppressing” would have been if people tarred and feathered these woman for walking around topless on the beach. What they did instead was to pursue a remedy through the justice system.

    The only “attacking and oppressing” I see is coming from Bernard and people like you. This juvenile attitude is exactly why “liberty” people will never amount to any real political force in NH or anywhere else in the US.

  14. You have just got to admire these Internet warriors with their bold threats and pronouncements … all from behind the safety of their keyboard.

    Run along, Chuckie. Go plague another corner of the Internet.

  15. @AlanJ: “Apparently anyone standing up for what they believe that conflicts with “liberty” beliefs is considered “attacking and oppressing”.

    Well, since the “liberty belief” is pretty much, “leave folks alone if they aren’t hurting you,” then that would be pretty much automatic. Because conflicting with the “liberty belief” would mean that you are attacking someone who isn’t harming you in any way.

    ” “Attacking and oppressing” would have been if people tarred and feathered these woman for walking around topless on the beach. What they did instead was to pursue a remedy through the justice system.”

    Sorry, but “it could have been worse” is not a legitimate argument to support your claim. Certainly, they could have attacked in a more-serious manner, but that does not mean they did not attack.

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