‘Free the Nipple’ Arguments At State Supreme Court Pit Discrimination Against Public Safety

Feb 2, 2018

The case of three women cited in 2016 for going topless on a beach in Laconia went before the New Hampshire Supreme Court this week.

The women of the Free the Nipple movement want the court to overturn Laconia's indecent exposure law. It specifically bars women from baring their breasts in public without their nipples covered.

Attorney Dan Hynes, also a state representative from Manchester, told the justices that the ordinance is discriminatory. He compared it to a hypothetical law barring gay people from the beach.

"Even if a majority of the town agreed with that, that's just not allowed,” he said.

Hynes acknowledged his side’s first amendment argument, that the women meant to send a message by going topless, is weak – since it wasn’t clear they were protesting, and since his clients want all women to be free from the prohibition.

The attorney for the state, Sue McGinnis, also argued against the idea that this case was a protest. And she argued the law is justified because it protects women from harassment by prohibiting nudity.

"This is a matter of public safety and morals,” she said. “What happened here shows that it's safety-related, because there was a really big disturbance on the beach" before the women in Laconia were arrested.

The justices questioned whether women had a practical right to go topless, and whether there was true harm in requiring them to cover up.

But they also wondered if Laconia's law might be outdated, overly broad, or arbitrary, since, McGinnis acknowledged, it still lets a woman legally wear only pasties that look like nipples.

They'll issue a ruling in the coming weeks.