Those raising objections against public nudity often claim that seeing naked people harms children. It was one of the claims raised in New Hampshire when three woman faced indecency charges for exposing their breasts on a Laconia beach.
The women previously prevailed in a district court case overturning a Gilford town ordinance banning female toplessness. The judge found that New Hampshire towns have no jurisdiction over topless sunbathing. Shortly afterward, New Hampshire legislators voted down a bill that would have banned topfree sunbathing, accepting the argument that it would be discriminatory against women, since men are free to go shirtless.
The Laconia case was different, even though the same judge presided over the hearing. He upheld Laconia’s ban, relying on a provision that allows towns “To restrain and punish vagrants, mendicants, street beggars, strolling musicians, and common prostitutes, and all kinds of immoral and obscene conduct, and to regulate the times and places of bathing and swimming in the canals, rivers and other waters of the city, and the clothing to be worn by bathers and swimmers.”
The defense attorney argued that the statute was not intended to stop women from taking their shirts off in public, and appealed the case to the New Hampshire Supreme Court. The American Civil Liberties Union (ACLU-NH) filed a brief arguing that Laconia’s ordinance violated New Hampshire’s Equal Rights Amendment because going topfree can be a form of protected speech.
The Supreme Court upheld the ban, concluding that “the Laconia ordinance does not classify on the basis of gender” because it “prohibits both men and women from being nude in a public place. That the ordinance defines nudity to include exposure of the female but not male breast does not mean that it classifies based upon a suspect class.”
Two of the justices dissented from that convoluted explanation, writing, “We agree with our colleagues in most respects: Laconia’s ordinance does not violate the defendants’ rights to freedom of speech and expression; it falls within the regulatory authority of the City of Laconia. However, we part company with the majority when it rejects the defendants’ equal protection claim.”
Inherent in that ruling was the assumption that the female breast is likely to cause affront or alarm and therefore falls under the state’s obscenity law: “A person is guilty of a misdemeanor if such person fornicates, exposes his or her genitals, or performs any other act of gross lewdness under circumstances which he or she should know will likely cause affront or alarm.”
(The law was reasonably expanded in 2023 to include a prohibition on sending an unsolicited “image of himself or herself fornicating, exposing his or her genitals, or performing any other act of gross lewdness” when the recipient “has not indicated by speech or conduct that the recipient has freely consented to receipt of the image.” That is a welcome change when many men feel free to post “penis shots” on naturist sites.)
States define “public indecency” in a variety of ways. Vermont, for instance, bans “open and gross lewdness and lascivious behavior” but otherwise allows people to be totally nude in public as long as they are not trying to scandalize or arouse people. Massachusetts stipulates that a person can be charged with “indecent exposure” only if it can be proven that someone was offended.
Complaints that “It doesn’t really bother me but there’s just a lot of kids around” or “It just seems wrong when you’ve got children at the park” are often raised by those without any real argument to support a claim nudity alone is offensive. That was the case with complaints about a naked man walking his dog in Colwick Woods, England, in 2022. People confirmed that the man was not approaching them or behaving in a dangerous or threatening way, but there were many comments about the negative impact of his nudity on children in the park.
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