Toplessness or Violence: Which Is Immoral? (Weir Beach Motion to Dismiss)

On Friday October 14, in Laconia district court, Judge Carroll heard the Motion to Dismiss for the Free the Nipple case. This case is unusual, in that I am thoroughly convinced that everyone in that room believed they were right, and was not engaging in rationalization to so believe.

I was able to get statements from two of the ladies who were being aggressed against by the State:

“My biggest problem with today’s hearing is the prosecutor kept ignoring the gender/sex discrimination. Cities are allowed to make rules, they just can’t make rules that only apply to women, or black people, or gay people, or Muslim.” – Kia

“How you choose to wear your body is a body rights and property issue. If you don’t own your body what do you own? It’s just as degrading to ask a woman to put a shirt on as it is to ask her to take it off. Nudity is a natural spiritual choice; I personally stand before my creator unashamed as his artwork, and the same should apply to a woman who chooses to wear a hijab.” – Ginger

The attorney for the protestors argued that the Laconia ordinance prohibiting female toplessness was unconstitutional on the grounds that it discriminates against women and is not authorized by the New Hampshire Constitution. New Hampshire is not a home rule state, which means that towns and other subdivisions of the State may only pass laws on matters which they are authorized by the New Hampshire legislature. The State of New Hampshire has not authorized its subdivisions to legislate on the topic of nudity or toplessness.

Sergant Black, who kidnapped Ginger while she was doing topless yoga on the beach, was asked a series of questions that illustrate the absurdity of using the State to solve problems. The attorney defending the ladies from the State asked Black, “how do you tell the difference between a female and male nipple?” Black sat there for over a minute of silence presumably wondering how to possibly respond with information that is so obvious. He finally responded that woman can breastfeed while men can not. Black was asked to define “gender” and “families.” He also testified that he can always tell the difference between male and female humans. Because attorneys must lay a foundation (establish the basis of a witness’ knowledge on the topics they are testifying about), the attorney aggressing against the protestors asked Black, “during your 35 years on this earth, have you had occasion to come across different genders?”

It is tempting to feel sorry for someone who is being required to answer questions that, while there CAN absolutely be marginal cases, are so fundamental that the lawyer aggressing against the protestors felt the need to apologize to the lay witnesses who testified. However, Black and the other aggressors put themselves in this situation when they decided to join the gang known as the Laconia Police Department. To be fair, I very seriously doubt that any of the people who aggressed against the protestors that day foresaw having to testify that they knew the difference between boys and girls when they joined the gang, but this is the nature of the State- to ignore all price signals that result in efficiency and to aggress against as many people as practical. Far from an innocent bystander, and aside from the fact that he kidnapped Ginger, Black dismissively characterized the legal arguments she was making when he was threatening to kidnap her if she did not put a top on as Ginger beginning to “talk about case law” despite the fact that these are rulings from the system that Black purports to adhere to. Black also testified that he requested a towel from a bystander and wrapped it around Ginger, which strikes me as unsanitary.

Ms. Sandra Smith had called the police on Kia after seeing her walk by topless. Ms. Smith was asked if she was able to tell the difference between males and females, and whether she was male or female. She testified that she doesn’t think its right for female nipples to be exposed “when you got kids” or otherwise. The defense attorney asked her “is that based on a religious belief?” Evidently unaware that this is an entirely illegal basis for law she answered “yes it is.” The prosecutor had her clarify that she was brought up to refrain from exposing her breasts and nipples.

Ian Davis testified that he called the police because there was a topless women with a man taking pictures of her. He stated that this made him feel unsafe because his nieces and nephews were there and he did not know if the man was taking photos of her or of children. Davis admitted that he was more concerned with the man taking pictures than with the topless woman.

Officer Holly Callahan was asked “are you able to determine… distinguish between males and females even if they’re fully clothed?” After hearing the attorneys ask prior witnesses about whether they were offended and discuss that a particular witness’ offense or lack thereof was not representative of community offense, Callahan volunteered that when she responded to the call she was approached by several people who told her that they were offended by a topless female. Callahan was thoroughly questioned about her ability to tell men and women apart. “Without the license would you be able to tell if Ms. Pierro was male or female?” “Yes.” “How?” Callahan was also asked, “would you enforce a law even if it was unfair or unjust?” I’m not sure why the prosecutor failed to object on the grounds of relevance, but she answered, “I am required to enforce the laws of New Hampshire and Laconia ordinances in the city of Laconia.” In other words, yes.

During closing arguments, the attorney aggressing against the ladies who were protesting stated that Laconia had to be able to set rules such as this because an understanding otherwise would imply that subdivisions could not set any rules for public places, which would cause the library to be required to be open 24 hours and “obviously that would be anarchy.” Assuming that New Hampshire and the US also refrained from making rules, I agree, that would be anarchy. Weirs Beach is unowned property. Statists would refer to it as government property, public property, or state property. The only reason that large tracts of valuable unowned property are able to remain unowned is because the State forcibly prevents people from homesteading them. Under statism the laughable results that are achieved include questioning grown people for two and a half hours on whether they know the difference between boys and girls, asking religious ladies in their 50s if they were brought up to refrain from taking their breasts out in public, seriously challenging people’s ability to differentiate between male and female nipples, and grown men insinuating that they are fearful of a female breast while under oath. This parade of ridicilousness is of course preformed with all the respectability and dignity that the State purports to have to offer. Anarchy offers a better solution.

The solutions offered by anarchy are preferable regardless of what you think of the goals of these admirable ladies. Under anarchy, the tragedy of the commons is almost non-existent. Clearly, people find the land that makes up Weirs Beach to be valuable, and someone would have homesteaded it. That person would then be able to allow or disallow toplessness for any person for any reason. Instead of having a two and a half hour hearing to determine the merits of female toplessness, and they have not even had the trial yet, the property owner would either have allowed these ladies on his/her beach without tops, or inform them that wearing tops was a condition of being invited to be on the beach. And right or wrong, it would not matter whether or not the property owner allowed men on the beach topless.
To be clear, neither the State nor property rights under anarchy determine whether or not the protesters are correct about their views on female breasts. Property rights do not determine which decision is the correct decision- they determine, efficiently and justly, who gets to make the decision. The State has inefficient and inherently aggressive ways of determining who gets to make decisions.

I have the utmost respect for anyone who is willing to take on a subsidiary of the largest, most violent gang in human history and get arrested for their beliefs. I do, however, disagree with the protestors with their views on female toplessness. I do not believe that male and female breasts are equal in humans. Humans are the only primates to have full breasts outside of pregnancy and lactation. Scientists believe that this functions to announce a woman’s fertility and ability to feed children. It is true that different cultures will report different valuations on female breasts, but that does not mean that all views are therefore purely cultural. “Researchers have long speculated that humans evolved the fatty deposits around the female mammary glands for sexual reasons.” Stimulation of female breasts releases oxytocin, which promotes pair bonding and mother/infant bonding. There is therefore, a scientific basis for saying that human female breasts are sexual. Which does not entirely answer the question as to whether or not females ought to expose their breasts publicly; it is the case that I am advocating a preference for keeping sexual things private.

And it is entirely immoral for the State to enforce preferences. Whatever harms I think might be caused by devaluing sexuality by making it public are far overshadowed by the harm caused by initiatory force being used against people with whom you disagree. Perhaps because it is the most immoral thing ever conceived, the State does not even go about regulating morality in a particularly sane manner. The Laconia ordinance at issue notably has an exemption for strip clubs, but not for breastfeeding.

Under anarchy, someone would own this beach. They might agree with me, they might agree with the protestors, or they might agree with either or us and act in the opposite manner because that is what their customers demand. They would not spend hours writing documents on whether the treatment was equal or just, they would just inform women that tops are required or they wouldn’t. People who found the decision moral would patronize that beach; people who found otherwise would patronize a beach that was more in line with their morals, open their own beach, or do something else with their time. Anyone who was topless or harassing topless women, depending on which side the owner took, would be trespassing and could be removed from the property for that offense. Under statism, the State who is blind and immune to all market signals makes one rule. Neither the protestors nor people who are more “morally conservative” may exercise a preference as to which type of beach they like. Then the State, in the name of supporting “morals and public order” initiates force against some women because it does not like their state of dress. All of the resource consuming absurdities that occurred here are irrelevant in a free society. Anarchy is the only system that gives everyone these choices and respects everyone’s property rights, including the right to bodily autonomy.

Should you wish to read the state’s objection to the motion to dismiss, it’s here.

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