On July 24, 2017, the ACLU of New Hampshire filed an amicus brief before the New Hampshire Supreme Court. This case challenges the constitutionality of the City of Laconia's public indecency ordinance which bans “the showing of the female breast with less than a fully opaque covering of any part of the nipple” in public places. This amicus brief--which is here--raises two arguments, which are excerpted below from the brief.
First, on its face, the City of Laconia’s public indecency ordinance violates the Equal Rights Amendment to Part I, Article 2 of the New Hampshire Constitution. The ordinance is discriminatory on its face because its definition of “nudity” facially distinguishes between females and males. The New Hampshire Constitution provides that “[e]quality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.” N.H. Const. pt. 1, art. 2. This sentence, known as the Equal Rights Amendment, was added to the New Hampshire Constitution in 1974 and was perceived at the time to be an important constitutional provision substantially enhancing protection against gender discrimination by the State.
Subsequent to this amendment’s passage, the New Hampshire Supreme Court formalized these additional protections in LeClair. v. LeClair, holding that “[w]e apply the strict scrutiny test, in which the government must show a compelling [s]tate interest in order for its actions to be valid, when the classification involves a suspect class based on ‘race, creed, color, gender, national origin, or legitimacy.’” LeClair v. LeClair, 137 N.H. 213, 222 (1993); see also Cheshire Med. Ctr. v. Holbrook, 140 N.H. 187, 189-90 (1995).
Since New Hampshire’s passage of the Equal Rights Amendment in 1974, the ACLU-NH is not aware of any gender-based classification that has been upheld by this Court as satisfying strict scrutiny under Part I, Article 2 of the New Hampshire Constitution. Here, given the ordinance’s gender-based distinction, there can be no serious dispute that this Court must apply strict scrutiny to the ordinance.
The State cannot satisfy strict scrutiny here. “[A]nachronistic assumptions” about gender roles “[do not] withstand scrutiny under the compelling interest standard.” Holbrook, 140 N.H. at 189-90. The U.S. Supreme Court has similarly held that, even under the lesser intermediate scrutiny standard, statutory objectives that rely on “fixed notions concerning [a gender’s] roles and abilities” are “illegitimate.” Morales-Santana, 137 S. Ct. at 1692. Yet the State’s justification for the ordinance centers on conflating moral sensitivities about the exposure of female breasts with real, physiological differences between male and female nipples. At least one court has correctly rejected such a theory under the lesser intermediate scrutiny standard. See Free the Nipple - Fort Collins v. City of Fort Collins, No. 16-cv-01308-RBJ, 2017 U.S. Dist. LEXIS 24648, at *8 (D. Colo. Feb. 22, 2017) (preliminarily enjoining an indecent exposure ordinance; finding the city’s “female breast is a sex object because we say so” rationale insufficient to justify sex discrimination).
Additionally, the State fails to sustain its burden under strict scrutiny to show that the ordinance is narrowly tailored. The public indecency ordinance imposes a blanket ban on the exposure of female nipples in a public place, regardless of the parties or circumstances involved. And, fatally, the State has failed to produce specific, tangible evidence establishing a link between the regulated activity and harmful secondary effects the ordinance seeks to address.
To the extent the State is concerned about public safety, the far more tailored approach would be to enforce existing criminal laws that ban disorderly conduct and assault. Based on the record, it appears that Laconia is the only municipality in New Hampshire that has enacted and is enforcing such a town-wide ordinance. New Hampshire’s other communities have apparently found ample ways to address public safety without engaging in gender discrimination. So too can Laconia. Indeed, as recently as 2016, the New Hampshire General Court rejected legislation that would have imposed a statewide female toplessness ban.
Second, Laconia’s ordinance violates Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution—though this Court need not reach this question if it concludes that the ordinance violates Part I, Article 2. At the outset, the ordinance directly bans forms of topless speech in public places—expression which warrants constitutional protection, yet would be banned under the ordinance’s prohibition on “the showing of the female breast with less than a fully opaque covering of any part of the nipple.” See Schad v. Mount Ephraim, 452 U.S. 61, 65-66 (1981) (recognizing nude dancing as expressive activity); Free the Nipple - Springfield Residents Promoting Equal. v. City of Springfield, 153 F. Supp. 3d 1037, 1045 (W.D. Mo. Dec. 28, 2015) (in topless protest case, denying the City’s motion to dismiss plaintiff’s First Amendment claim; holding that “Defendant has not demonstrated that, as a matter of law, Plaintiffs’ conduct is not expressive”) (emphasis in original); Tagami v. City of Chicago, No. 14-cv-9074, 2015 U.S. Dist. LEXIS 90149, at *6 (N.D. Ill. July 10, 2015) (in denying motion to dismiss, holding that, in the context of a “GoTopless Day” event, the plaintiff had sufficiently alleged that “she engaged in expressive conduct protected by the First Amendment”); Hightower v. City & County of San Francisco, 77 F. Supp. 3d 867, 878 (N.D. Cal. 2014) (holding that nude protesters at city hall expressing “pro-body” and anti-public-indecency-ordinance messages engaged in protected expression); City of Daytona Beach v. Book, No. 2005-00021-CAAP, at *1, 4 (Fla. Volusia County Ct. Oct. 5, 2006) (affirming that defendant’s toplessness in a “Top Free Protest” was “incidental to and necessary for the conveyance of her message”).
Here, the ordinance is content-based because it bans exposing a female nipple as part of expressive conduct simply because the City of Laconia disfavors it. Thus, once again, strict scrutiny applies. Not only do the interests enumerated by the ordinance fail to satisfy the “compelling interest” standard for equal protection under the New Hampshire Constitution and content-based restrictions on free speech, they also fail to warrant “important” or “significant” interests required of content-neutral restrictions due to a lack of evidence showing how they are furthered by the ordinance. The scope of the public indecency ordinance is also simply too broad to satisfy narrow tailoring because it regulates expression beyond the ordinance’s purported justifications.
On February 8, 2019, the Court upheld the ordinance in a 3 to 2 decision.