By GAIL OBER, LACONIA DAILY SUN
LACONIA – Female breasts on view at local beaches are not illegal yet the right to bare them is not constitutionally protected, said Judge Jim Carroll in a two-page ruling issued Friday that upheld his previous order in the case of two women who were cited for going topless last year at Gilford Beach.
In his ruling, Carroll upheld his original decision regarding criminality by reiterating that since nothing in the state criminal code prohibits women from exposing their nipples in public, the Gilford town ordinance is unenforceable from a legal point of view.
The town had challenged his previous ruling to dismiss case against Heidi Lilley of Gilford and Barbara MacKinnon after they were both given violations by police for appearing topless at the beach on Sept. 6. saying he "misapprehended" a provision in state law regarding regulations made by local authorities.
Carroll took notice of the fact that the legislature recently decided not to criminalize the exposure of the female nipple after a bill introduced by three Lakes Region state representatives failed to get the support it needed to pass.
"The Court had previously found that RSA 645:1 or Indecent Exposure and Lewdness does not prohibit the public display of the female nipple or breast," he wrote. "With the most recent legislative action, the subject statute remains intact."
He said the presumption in state law is that it "flows from the principle that municipal legislation is invalid if it is repugnant to, or inconsistent with, state law." State law, he said, preempts local law if there is an actual conflict between the two.
Gilford town officials could not be reached for comment Friday.
In the same ruling, Carroll also said Lilley and MacKinnon's actions that day were not constitutionally protected as free speech under the First Amendment. They had also filed a motion to reconsider his previous order on constitutional grounds.
"I'm not surprised," said Lilley Friday, adding that there really wasn't anything else to say.
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