2017-0116, The State of New Hampshire v. Heidi C. Lilley; The State of New Hampshire Kia Sinclair; The State of New Hampshire v. Ginger M. Pierro

for the defendant s. Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally),

assistant attorney general, on the brief and orally), for the State. Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior

No. 2017 - 0116 4th Circuit Co urt - Laconia District Division

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

Sinclair testified that she was one of the people who “started” the movement in In p. 2 2015, Sinclair became involved in the “Free the Nipple” movement.

ch. 180, art. I, § 180 - 4 (1998). opaque covering of any part of the nipple.” Laconia, N.H., Code of Ordinances opaque covering, or the showing of the female breast with less than a full y human male or female genitals, pubic area or buttocks with less than a fully [a]ppear in a state of nudity.” “N udity” is defined as “[t]he showing of the be unlawful for any person to knowingly or intentionally, in a public place: . . . Ordinance § 180 - p. 2 2 (the ordinance), which states, in relevant part, that “it shall Callan an tes tified that Pierro was arrested for violating Laconia City

bathing suit top back on, or put her shirt back on,” but that Pierro “refused.” Callan an stated that they asked Pierro “multiple times to cover up, to put her City Ordinance, since her nipples were exposed on the beach in a public place.” the reason [they] were making contact with her was in reference to a Lacon ia fact, trying to speak to her.” She testified that they “explained t o [Pierro] that about a minute or so, [Pierro] looked up and acknowledged that we were, in but that Pierro “continued to do her yoga poses.” She explained that “after both exposed.” Callan an stated that she “made attempts to speak to” Pierro, who was “not wearing any shirt and her breasts, as well as her nipples, were Callan an testified that they approached a woman, later identified as Pierro, department had “received several calls about a female . . . doing nude yoga.” same day, he and Officer Callan an responded to the beach because the Sergeant Black of the Laconia Police Department testified that, on that

were only actually a handful that were upset.” harassed” by “[s]everal citizens,” but that “out of everybody on the beach, there was “performing yoga on the beach.” She stated that she “was violently and was there “to enjoy the beach.” She agreed with defense counsel that she on the defendants’ motion to dismiss, Pierro testified that she “was topless” May p. 2 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing defendants’ motion to dismiss or are otherwise supported by the record. On The following facts are drawn from the trial court’s order on the

I. Background

I, § 180 - p. 2 2 (1998). We affirm. of nudity in a public place. See Laconia, N.H., Code of Ordinances ch. 180, art. violated a City of Laconia ordinance prohibiting them from appearing in a state Ginger Pierro, appeal a ruling of the Circuit C ourt (Carroll, J.) that they HANTZ MARCONI, J. The defendants, Heidi Lilley, Kia Sinclair, and

Bissonnette on the brief), as amicus curiae. American Civil Liberties Union of New Hampshire, of Concord (Gilles R. p. 3 3

pt. I, art. 2; U.S. CONST. amend. XIV. We review the constitutionality of local Fourteenth Amendment to the United States Constitution. See N.H. CONST. protecti on under Part I, Article 2 of the New Hampshire Constitution and the The defendants first argue that the ordinance violates their right to equal

II. Equal Protection

We will address each of the defendants’ arguments in turn. legislature; (4) is preempted by RSA 645:1; and (5) violates RSA c hapter p. 3 354 - A. not fall within the regulatory authority granted to the City of Laconi a by the free speech and expression under the State and Federal Constitutions; (3) does protection under the State and Federal Constitutions; (2) violates their right s to their motion to dismiss because the ordinance: (1) violat es their right to equal On appeal, the defendants argue that the trial court erred by denying

appeal followed. subsequently found the defendants guilty of violating the ordinance. This Following a hearing, the court denied the defendants’ motion. The court RSA ch. p. 3 354 - A (2009 & Supp. 2017) (amended 2018). The State objected. defendants maintained that the ordinance violates RSA chapter 354 - A. See and that the ordinance was preempted by RSA 645:1 (2016). Finally, the contended that the City of Laconia lacked the authority to enact the ordinance right to free speech under the Sta te and Federal Constitutions. They further argued that the ordinance violates the guarantee of equal protection and their The defendants jointly moved to dismiss the charges against them. They

attention to [her] cause.” day, she “chose to take it upon [herself] to violate the ordinance to give arrested for protesting.” She further agr eed with the prosecutor that, on that was acting in a protest and that [she] did not believe that [she] could be Pierro’s arres t and that she “announced to the arresting police officer that [she] been arrested a few days prior.” Lilley testified that she was also protesting and areola.” She stated that she was “protesting [Pierro’s] case where she had the City of Laconia has an ordinance against the exposure of the female nipple Sinclair testified that she “purposely engaged in civil disobedience knowing th at Laconia. While at the beach, they were arrested for violating the ordinance. On May p. 3 31, 2016, Sinclair and Lilley went topless to Weirs Beach in

“believe[s] in the equal ity of the male and female.” Lilley testified that she is “a feminist” and joined the movement because she world.” Sinclair tol d Lilley about the movement, which Lilley then joined. breastfeeding rates that the United States has compared to the rest of the taboo,” which she stated results “in that stigma” and “contributes to the lo w specifically nipples, are “hypersexualize[d]” and “consider[ed] pornographic and stigma on breastfeeding.” She explained that she believed that breasts, New Hampshire after having her son and realizing “that there was a very big p. 4 4

any difference that we are dealing with an ordinance rather than a statute. No party asserts that, for the purposes of considering their constitutional arguments, it makes 1

substantially related to an important government interest. C mty. Res., 15 p. 4 4 which requires the government t o show that the challenged legislation is involv es important substantive rights, Sandra H., 150 N.H. at 637 - 38, and intermediate scrutiny, which is triggered when the challenged classification Lam arche v. McCarthy, 158 N.H. 197, 204 (2008). B elow strict scrutiny is see also Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 693, 697 - 98 (2007); affected. See Estate of Cargill v. City of Rochester, 119 N.H. 661, 667 (1979); scrutiny depending on the nature of the right and the manner in which it is Classifications which affect a fundamental right may be subject to strict Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748, 759 (2007). necessary to achieve a compelling government interest and is narrowly tailored. subject to strict scrutiny: the government must show that the legislation is individual rights affected. Id. Classifications based upon suspect classes are examining the purpose and scope of the State - created classification and the th e ordinance. In re Sandra H., 150 N.H. 634, 637 (2004). We do this by Next, we must determine the appropriate standard of review to apply to

See Hollenbeck, 16 p. 4 4 N.H. at 158. there is no set of circumstances under which this ordinance might be valid. 180, art. I, §§ 180 - 2, 180 - 4. Thus, the defendants must demonstrate that of the nipple” in a public place. See Laconia, N.H., Code of Ordinances ch. showing of the female breast with less than a fully opaque covering of any part claim to be a facial challenge to the portion of the ordinance that prohibits “the ordinance makes a gender - based classification on its face.” We co nstrue their ordinance is constitutional in any circumstance. They argue that “the Here, the defendants do not concede that the relevant portion of the

is not so under the particular circumstances of the case. Id. statute may be constitutional in many of its applications, but contends that it be valid. Id. On the other hand, an as - applied challenge concedes that the circumstances exist s under which the challenged statute or ordinance would To prevail on a facial challenge, the challenger must establish that no set of statute violates the Constitution in all, or virtually all, of its applications. Id. head - on attack of a legislative judgment, an assertion that the challenged See State v. Hollenbeck, 16 p. 4 4 N.H. 154, 158 (2012). A facial challenge is a ordinance by asserting a facial challenge, an as - applied challenge, or both. 1 ordinance. An appellant may challenge the constitutionality of a statute or an We begin by addressing the scope of the defendants’ challenge to the

12 p. 4 4 N.H. 226, 231 - 33 (1983). State Constitution and cite federal opinions for guidance only. State v. Ball, N.H. 773, 777 (2007). We first address the defendants’ arguments under the ordinances de novo. McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 1 p. 5 54 5

challenge to ordinance prohibiting women but not men from e xposing their 237 F. Supp. 3d 1126, 1133 (D. Col o. 2017) (concluding that equal protection cases). But see Free the Nipple Fort Collins v. City of Fort Collins, Colorado, Exposure of Female, but not Male, Breast s, 67 A.L.R. p. 5 5th 431 (1999) (collecting challenges. See generally Kimberly J. Winbush, Annotation, Regulation of women but not men from exposing their breasts against equal protection Courts in other jurisdictions have generally upheld laws that prohibit

triggers strict scrutiny. based classification, does not necessarily establish that the Laconia ordinance Holbrook, the only case in which we have applied strict scrutiny to a gender both men and women, but applies to women somewhat differently. Thus, of legislation that is at issue here: a proscription that imposes requirements on necessaries doctrine. Id. at 189. However, Holbrook did not address the type compellin g justification for the gender bias embodied in the traditional third parties. Holbrook, 140 N.H. at 189 - 90. We concluded that there was no husbands legally liable for essential goods or services provided to their wives by applied strict scrutiny to the common law doctrine of necessaries, which made (quotation omitted)) (superseded by statute on other grounds). In Holbr ook, we class based on race, creed, color, gender, national origin, or legitimacy. . ..” (“We apply the strict scrutiny test . . . when the classification involves a suspect N.H. 187, 189 (199 p. 5 5); see also LeClair v. LeClair, 137 N.H. 213, 222 (1993) thereon trigger strict scrutiny. See Cheshire Medical Center v. Holbrook, 140 Hampshire Constitution, gender is a suspect class and classifications based sex or national origin.” N.H. CO NST. pt. I, art. 2. Thus, u nder the New shall not be denied or abridged by this state on account of race, creed, color, New Hampshire Constitution states, however, “Equality of rights under the law United States v. Virginia, 518 U.S. 515, 532 - 33 (1996). Part I, Article 2 of the Amendment, a classification based on gender triggers intermediate scrutiny. Under federal equal protection law, pursuant to the Fourteenth

rational basis test applies. women on the basis of their dif ferent physical characteristics; thus, the The State counters that the ordinance only distinguishes between men and gender and/or sex; thus, strict scrutiny is the appropriate standard of review. The defendants argue that the ordinance discriminates on the basis of

some reasonable just ification. Id. at p. 6 640. must show that whatever classification is promulgated is arbitrary or without 639 (2006). Under this test, the party challenging the statute or ordinance government interest. Boulders at Strafford v. Town of Strafford, 1 p. 5 53 N.H. 633, rational basis test requires that legislation be rationally related to a legitimate 638; cf. Gonya v. Comm’r, N.H. Ins. Dept., 153 N.H. 521, 532 - 33 (2006). Our constitutional standard of review is that of rationality. Sandra H., 150 N.H. at affecting fundamental rights, or involving important substantiv e rights, the N.H. at 762. Finally, absent a classification based upon suspect classes, 6

ordinance unconstitutional. But cf. Free the Nipple Fort Collins, 237 F. Supp. 3d at 1133. Relatedly, we are aware of no court with precedent - setting authority that has held such an 2

alike to men and women, requiring both to cover those parts of their bodies im pose unequal responsibilities on women” because the ordinance “applie[d] but defined nudity for women to include exposure of the breast, “d [id] not . . . ordinance which prohibited both men and women from being nude in public, In Buchanan, for example, the Washington Supreme Court held that an

that restricted locations of businesses feat uring female topless dancers). Schleuter, 947 S.W.2d at 925 - 2 p. 6 6 (applying no heightened scrutiny to ordinance (recognizing that sex is a suspect class under Texas Constitution), with C ompare Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989) 921; City of Albuquerque v. Sachs, 92 P.3d 24, 27, 29 (N.M. Ct. App. 2004). strict scrutiny to ordinances similar to Laconia’s. See Buchanan, 584 P.2d at 2 under their respective state constitutions, we are aware of none that apply Among states, like New Hampshire, that define gender as a suspect class

also Hang On, Inc. v. City of Arlington, p. 6 65 F.3d 1248, 12 56 - 5 p. 7 7 (5th Cir. 1995). constitution); Eckl v. Davis, 124 Cal. Rptr. 685, 695 - 96 (Ct. App. 1975); see of Seattle v. Buchanan, 584 P.2d 918, 920 - 22 (Wash. 1978) (en banc) (state Fort Worth, 947 S.W.2d 920, 925 - 26 (Tex. App. 1997) (state constitution); City trigger any form of heightened constitutional review. See Schleuter v. City of constitution). Still o thers appear to have concluded that such laws do not Department of Liquor Control, 531 A.2d 170, 175 (Conn. App. Ct. 1987) (state 917 P.2d 706, 707 (Ariz. Ct. App. 1995) (state constitution); Dyd y n v. S upp. 289, 299 (D. Mass. 1988) (Federal C onstitution); City of Tucson v. Wolfe, F. 3d 134, 141 - 42 (2d Cir. 1998) (Federal C onstitution); Craft v. Hodel, 68 3 F. S. Ct. 1577 (2018) (Federal C onstitution); Buzzetti v. City of New York, 140 Tagami v. City of Chicago, 875 F.3d 375, 380 (7th Cir. 2017), cert. denied, 138 federal equal protection law or an analogous state consti tutional provision. See their breasts are gender - based and trigger intermediate scrutiny either under have explicitly held that laws which prohibit women but not men from exposing 1, Inc. v. City of Mobile, 966 F. Supp. 1131, 1139 (S.D. Ala. 1996). Others United States v. Biocic, 928 F.2d 112, 115 (4th Cir. 1991); J & B Soc. Club No. satisfied. See Ways v. City of Lincoln, 331 F.3d 596, 600 (8th Cir. 2003); on the grounds that the heightened requirements of intermediate scrutin y were intermediate scrutiny under the F ederal C onstitution, and then upheld them assumed without deciding that such laws are gender - based and thus trigger S - BP, 2017 WL 6815041, at *2 - 3 (W.D. M o. Oct. 4, 2017). Some courts have Residents Promoting Equality v. City of Springfield, Missouri, No. 15 - 3467 - CV - N.W.2d 252, 255 - 56 (Minn. Ct. App. 1986); Free the Nipple – Springfield v. Lakelan d Lounge, 688 So. 2d 742, 751 - 52 (Miss. 1996); State v. Turner, 382 Memphis, Tenn., 568 F. Supp. 1285, 1290 (W.D. Tenn. 1983); City of Jackson often left unclear the applicable standard of review. See Tolbert v. City of breasts was likely to succeed on the merits). In so doing, however, they have 7

erogenous zone); Buzzetti, 140 F.3d at 143 (noting that, unlike the male breast, (noting that female breasts have traditionally been regarded by society as an nudity. See id.; Sachs, 92 P.3d at 29; see also Biocic, 928 F.2d at 115 - 16 fungible with respect to the traditional understanding of what constitutes 696. The ordinance merely reflects the fact that men and women are not understood to include the uncovering of the breast s.” Eckl, 124 Cal. Rptr. at situation with respect to men, nudity in the case of women is commonly based upon a suspect class. See id.; Gonya, 153 N.H. at 532. “Unlike the exposure of the female but not male breast does not mean that it classifies Buchanan, 584 P.2d at 922. That the ordinance defines nudity to include 180 - 4. “[T] he ordinance here does not prevent exposure by one sex only.” public place. See Laconia, N.H., Code of Ordinances ch.180, art. 1, §§ 180 - 2, gender. The ordinance prohibits both men and women from being nude in a We conclude that the Laconia ordinance does not classify on the basis of

similarly situa ted in certain circumstances.”). gender classification . . . realistically reflects the fact that the sexes are not (plurality opinion) (“[T]his court has consistently upheld statutes where the Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 468 - 69 (1981) similar reasoning. See, e.g., Craft, 683 F. Supp. at 300 (quoting Eckl); see also apply intermediate scrutiny to these types of laws have upheld them based on in the threshold analysis of the applicable standard of review, other courts that While Washington and California appear to address these considerations

Eckl, 124 Cal. Rptr. at 696.

circ umstanced are treated alike. object of the legislation, so that all persons similarly ground of difference having a fair and substantial relation to the The classification is reasonable, not arbitrary, and rests upon a nece ssary to include express reference to that area of the body. Consequently, in proscribing nudity on the part of women it was commonly understood to include the uncovering of the breasts. the situation with respect to men, nudity in the case of women is that po rtion of a woman’s body and that of a man’s torso. Unlike Nature, not the legislative body, created the distinction between

The Eckl court reasoned similarly:

“classify . . . on the basis of sex.” Id. at 921. does not render it discriminatory.” Id. at 922. Thus the ordinance did not procreative function. The fact that the ordinance takes acc ount of this fact there are more parts of the female body intimately associated with the draping of more parts of the female body than of the male, but only because P.2d at 921. The court note d, “I t is true that [the ordinance] requires the which are intimately associated with the procreati on function.” Buchanan, 5 p. 8 84 8

advancing those interests. See i d. at 571 - 72; Craft, 6 p. 8 83 F. Supp. at 300 - 01. Barnes, 501 U.S. at 569. Furthermore, the ordinance is rationally related to is defined as the authority to provide for the public health, safety, and morals.” are legitimate government interests. “The traditional poli ce power of the States Glen Theatre, Inc., 501 U.S. 560, 569 (1991). We likewise conclude that they “protect[ing] the public from invasions of its sensibilities”); see also Barnes v. zones”); Craft, 683 F. Supp. at 299 - 300 (fin ding a sufficient state interest in of the body “that traditionally in this society have been regarded as erogenous substantial segment of society that still does not want to be exposed” to parts “government interest .. . [in] protecting the moral sensibilities of that [intermediate] scrutiny”); Biocic, 928 F.2d at 115 - 16 (finding “important” the moral norms and public order” to be “important enough to survive See Tagami, 875 F.3d at 379 - 80 (finding the purposes of “promoting traditional intermediate scrutiny, let alone legitimate ones under rational basis review. Federal courts have found these to be important or substantial interests under deemed to be contrary to the societal interest in order and morality.” Id. (1998). Under the terms of the ordinance, “[t] he conduct prohibited . . . is public order.” Laconia, N.H., Code of Ordinances ch. 180, art. I, § 180 - 1 ordinance is to uphold and support “public health, public safety, morals and attack to an ordinance a nalyzed only for rationality. The stated purpose of the defendants have not carried the heavy burden of mounting a successful facial Applying the standard, we have little trouble concluding that the

appropriate standard of review for this ordinance. substantive right. Cf. LeClair, 137 N.H. at 2 22 - 23. Hence, rational basis is the does not apply because the ordinance does not involve an important infra, there was no such deprivation here. Similarly, intermediate scrutiny also Estate of Cargill, 119 N.H. at 667. For the reasons discussed in Part III, must be an actual deprivation of the right. Lamarche, 15 p. 8 8 N.H. at 204; see For limitations upon a fundamental right to be subject to strict scrutiny, there classified as fundamental incurs strict scrutiny. Bleiler, 155 N.H. at 697 - 98. defendants’ nudity in this case was expressive, not every restriction of a right A.M., 529 U.S. 277, 289 (2000). Even assuming without deciding that the in a state of nudity is not an inherently expressive condition,” Erie v. Pap’s McGraw v. Exeter Region Coop. Sch. Dist., 145 N.H. 70 9, 713 (2001), “[b]eing 124 Cal. Rptr. at 695. Although freedom of speech is a fundamental right, see Nor do we find that the ordinance affects a fundamental right. See Eckl,

brackets omitted)). one sex is different from a community compo sed of both.” (quotation and at 533 (“The two sexes are not fungible; a community made up exclusively of society, and almost invariably conveys sexual overtones”); cf. Virginia, 51 p. 8 8 U.S. “public exposure of the female breast is rare under the conventions of our p. 9 9

Nipple Fort Collins, 237 F. Supp. 3d at 1133. Soc. Club No. 1, p. 9 966 F. Supp. at 1139 - 40; Craft, 683 F. Supp. at 299 - 301. But see Free the 379 - 80; Ways, 331 F.3d at 599 - 600; B uzzetti, 140 F.3d at 144; Biocic, 928 F.2d at 115 - 16; J & B similar to Laconia’s even when subjecting them to intermediate scrutiny. See Tagami, 875 F.3d at Federal courts applying federal equal protection analysis have near - uniformly upheld ordinances We reach the same result under the Federal Constitution as we do under the State Constitution. 3 cases to support its contention that the Laconia ordinance contains a gender - Sachs, 92 P.3d at 29. Indeed, the dissent itself relies on out - of - jurisdiction rights under law shall not be denied on account of the sex of any person.”); sex.”); Buchanan, 584 P.2d at 920 - 22; N.M. CONST. art. 2, § 18 (“Equality of responsibility under the law shall not be denied or abridged on account of S.W.2d at 925 - 26; WA. CONST. art. 31, § 1 (“Equality of rights and abridged because of sex, race, color, creed, or national origin.”); Schleuter, 947 See TEX. CONST. a rt. 1, § 3a (“Equality under the law shall not be denied or many of them in states with equal protection provisions sim ilar to our own. see how we depart from that duty by checking our work against other courts, cases have not had occasion to answer the question presented here, we fail to Hampshire Constitution.” Ball, 124 N.H. at 231. However, where our previous an independent determination of the protections afforded in the New We agree with the dissent, of course, that this court has a duty “to make

to the unique facts of this case. which this case turns, however, is what that examination reveals when applied and scope of the State - created classification, we agree. The primary issue on standard of review in equal protection challenges by examining the purpose ex tent the dissent contends that our pr ecedent requires us to determine the analyzing whether Laconia’s ordinance is gender - based. In other words, to the discrimination” under Part I, Article 2). Thus, our prior cases are not helpful in to “determine what level of review should be employed in cases of gender . . . “cannot even withstand the lowest level of judicial scrutiny,” and thus declining certain scholarships established by trust but expressly limited to one gender (1 p. 9 990) (concluding that the “State’s participation in the administration of” strict scrutiny. But cf. In re Certain Scholarship Funds, 133 N.H. 227, 231 grounds contained a gender - based classification and therefore was subject to any, in which we have concluded that a law challenged on equal protection men and women. The dissent identifies no other instance, nor are we aware of discussed, the law at issue in Holbrook did not impose requirements on both classification in Holbrook, see Holbrook, 140 N.H. at 189 - 90, as already this question. Although we applied strict scrutiny to a gender - base d the dissent, we have little in the way of help from our own cases in answering as demonstrated by the lack of any meaningful discussion of our precedent in ascertaining whether Laconia’s ordinance classi fies based on gender. However, The dissent faults us for seeking guidance from other courts in

of the New Hampshire Constitution. 3 For these reasons, we hold that the ordinance does not violate Part I, Article 2 p. 10 10

right, courts will not second guess legislative bodies as to the wisdom of a constitutional role. In the absence of a suspect classification or a fundamental Nor should the siren call of “equal rights” lead us to forget our

such an ordinance unconstitutional. Neither can we ignore that no court with precedent - setting authority has held analogous to our own has applied strict scrutiny to an ordinance like Laconia’s. which a court sitting in a jurisdiction with an Equal Rights Amendment is telling that the dissent has identified no case, nor are we aware of any, in already discussed, we find no gender - based classification in the ordina nce. I t based classification. See Buchanan, 584 P.2d at 921 - 22. For the reasons be treated differently: they must be treated differently based upon a gender simplistic. For strict scrutiny to apply, it is not enough that men and women gender - based classification. Respectfully, we find this approach deceptively women to engage in precisely the same mode of dress, it must contain a its reasoning. It assumes that, because the ordinance does not allow men and “archaic prejudice.” The resort to such hyperbole reveals the flawed nature of discrimination,” “romantic paternalism,” “unexamined stereotypes,” and ordinance, and our analysis of it, together with “pervasive and perverse At various points throughout its opinion, the dissent lumps the

Holbrook. See Holbrook, 140 N.H. at 189 - 90. suffices to say that any such case would be controlled by our analysis in more onerous retire ment benefit requirements for women than for men, it we would not apply strict scrutiny in a case that concerned laws imposing dissent’s assertion that, given our approach to analyzing Laconia’s ordinance, not afford different treatment for men and women based on gender. As for the and women differ with respect to nudity, we conclude that the ordinance does treatment under the law. However, based on the unique way in which men (quotation omitted), and therefore are generally improper bases for differing irrelevant,” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) characteristics have “long [been] recognized as i n most circumstances same time, i t is undeniably true that c lassifications based on immutable attempt to deny that nudity is simply different for men than for women. At the understanding of nudity, are unique. Indeed, the dissent does not even particular way in which men and women differ with respect to the traditional colors, or national origins. We disagree. The facts of this case, including the other laws” that afford differing treatment to people of different race s, religions, approach to analyzing Laconia’s ordinance “would not apply with equal force to The dissent also contends that there is “no principled reason why” our

amongst courts whose holdings align with our own personal ideologies. courts have tackled this difficult question, lest we simply pick and choose from independently interpret Part I, Article 2, to consider the full range of how persuasive, that i s all the more reason for us, in fulfilling our obligation to based classification. To the extent the dissent simply finds those cases more p. 11 11

ther e by to express an idea”; however, “we acknowledge that conduct may be be labeled ‘speech’ whenever the person engaging in the conduct intends We do not accept “the view that an apparently limitless variety of conduct can circumstances and in all places. State v. Biondolillo, 164 N.H. 370, 373 (2012). speech, but they do not offer absolute protection to all speech under all (2 014). The State and Federal Constitutions contain robust guarantees of free protected by the State Constitution. State v. Bailey, 166 N.H. 537, 540 - 41 on free speech, we must first address whether the speech or conduct at issue is When assessing whether government restrictions impermissibly infringe

303 U.S. 444, 450 (1938). the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin, the freedom of speech.” U.S. CONST. amend. I. It applies to the states through 22. Similarly, the First Amendment prevents the passage of laws “abridging state: They ought, therefore, to be inviolably preserved.” N.H. CONST. pt. I, art. speech and liberty of the press are essential to the security of freedom in a Part I, Article 22 of the New Hampshire Constitution provides: “Free

154 N.H. at 777. Once again, our review of this constitutional questio n is de novo. McKenzie, and rely on federal law only to aid in our analysis. Ball, 124 N.H. at 231 - 33. We first address the defendants’ claims under the State Constitution,

to have the con duct of being topless be accepted and normalized.” than the male nipple,” “to continue the advancement of women’s rights[,] and attention to gender equality and how the female nipple is treated different[ly] object.” They further maintain that, by doing so, they sought “to bring [their] political viewpoint and message that the female nipple is no t a sexual defendants] engaged in speech and expression . . . to demonstrate to others Constitution. They c ontend that, “[b]y appearing topless in public, [the Hampshire Constitution and the First Amendment to the United States freedom of speech and expression under Part I, Article 22 of the New The defendants next argue that the ordinance violates their right s to

III. Freedom of Speech

such a decision, but this court will not make it for them. repealed.” Buchanan, 584 P.2d at 920 - 21. The people of Laconia may make demand will soon make it imperative that this portion of the ordinance be propriety are changing”; if so, then “it can reasonably be expected that public v. Casey, 505 U.S. 833, 850 (1992). “We are told t hat concepts of mora lity and “not to mandate our own moral code.” Planned Parenthood of Southeastern P A at 921 (quotation omitted). “Our obligation” is to interpret and apply the law, social standards” is not dete rminative for our purposes. Buchanan, 584 P.2d That the ordinance may or may not “reflect sociological insight, or shifting specific law. Winnisquam Reg. Sch. Dist. v. Levine, 152 N.H. 537, 539 (2005). p. 12 12

Thus, for purposes of this appeal, we also will assume, without deciding, that at which the defendants were arrested constitute traditional public forums. The defendants suggest, and the State does not dispute, that the beaches

activities taking place in a public forum); see also Clark, 468 U.S. at 293. constitutionality of restrictions on the time, place, and manner of expressive N.H. at 373 (noting that federal precedent employs the same standa rd to assess significant government interest. Doyle, 163 N.H. at 221; see Biondolillo, 164 a slightly less stringent test — it must be narrowly tailored to serve a compelling state interests.”). If a restrictio n is content - neutral, it must satisfy justified only if the government proves that they are narrowly tailored to serve communicative content — are presumptively unconstitutional and may be (2015) (“Content - based laws — those that target speech based on its government interest. Id.; Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 222 6 restriction is content - based, it must be narrowly tailored to serve a compelling N.H. Dep’t of Resources & Economic Dev., 163 N.H. 215, 221 (20 p. 12 12). If a impose reasonable time, place, and manner restrictions. Doyle v. Comm’r, and debate.” Id. (quotation omitte d). In such forums, the government may which by long tradition or by government fiat has been devoted to assembly limited public forums. Id. “A traditional public forum is government property three cate gories — traditional public forums, designated public forums, and 542 (quotation and brackets omitted). Government property generally falls into must be evaluated differ depending on the character of the property.” Id. at brackets, and ellipsis omitted). “The standards by which limitations on speech on property that it owns and controls.” Bailey, 166 N.H. at 541 (quo tation, “It is well settled that the government need not permit all forms of speech

therefore, determine whether the ordinance violates their right to free speech. Amendment” (quotation omitted)); see also Bailey, 166 N.H. at 541. We must, constituted “expressive conduct protected to some extent by the First that plaintiffs’ shirt - free appearances at Cape Cod National Seashore protected expressive conduct); Craft, 683 F. Supp. at 292 (assuming dubitante that overnight sleeping in connection with demonstration was constitutionally Creative Non - Violence, 468 U.S. 288, 293 (1984) (assuming, but not deciding, constitutionally protected expressive conduct. See Clark v. Community for this case we will assume, without deciding, that the defend ants engaged in expressive condition,” Pap’s A.M., 529 U.S. at 289, under the circumstances of protected speech. Although “[b]eing in a state of nudity is not an inherently The State contends that the defendants’ conduct did not constitute

encompassing expressive activity”). such an effect where a prosecution under the statute concerns conduct although statute did not specifically regulate speech, its application “may have ellipsis omitted); see State v. Comley, p. 13 130 N.H. 688, 691 (1988) (noting that constitutional protections.” Bailey, 166 N.H. at 541 (quotation, brackets, and sufficiently imbued with elements of communication to fall within the scope of 13

enforcing the ordinance against pre - pubescent females” and that it is applied. For example, they state that “presumably Laconia would not be circumstances under which, they argue, the ordinance would be unlike ly to be Finally, the defendants pose various scenarios in their brief regarding

were erroneous, we need not conduct a further constitutional analysis. the defendants have not otherwise demonstrated that the trial court’s rulings reject that argument by concluding that the ordinance is content - neutral, and and, thus, should be subject to strict scrutiny review. Because we necessarily argument is t hat the ordinance is content - based and viewpoint discriminatory court’s ruling s that the ordinance meets these requirements. Rather, their only for communication. Id. On appeal, the defendants do not challenge the trial C ontent - neutral restrictions must also leave open ample alternative channels tailored to serve a significant government interest. Doyle, 163 N.H. at 221. As we stated, if a r estriction is content - neutral, it must be narrowly

the ordinance is content - neutral. i n that they cannot be carried out in the nude. We, therefore, conclude that ordinance merely regulates the manner in which activities may be carried out expressive activity. See Pap’s A.M., 529 U.S. at 290. In that sense, the prohibits all nudity, regardless of whether the nudity is accompanied by to advance women’s rights or desexualize t he female nipple. Rather, it the expense of others.” Id. (quotation omitted). It does not target nudity meant ordinance itself that suggests “that one group’s viewpoint is to be preferred at Supp. at 293 (quotatio ns omitted). There is nothing in the text of the not based upon either the content or subject matter of speech.” Craft, 683 F. regulation prohibiting public nudity at the seashore, the ordinance is “plainly Court for th e District of Massachusetts ruled regarding a National Park Service not related to the suppression of expression). As the United States District A.M., 529 U.S. at 290 (concluding that ordinance banning public nudity was The ordinance is, on its face, a general prohibition on public nudity. See Pap’s We agree with the trial court that the ordinance is not content - based.

omitted). Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (quotation and emphasis without reference to the content of the regulated speech.” City of Renton v. On the other hand, a law is a content - neutral speech regulation if it is “justified expressed.” Reed, p. 13 135 S. Ct. at 2227; see also Biondolillo, 164 N.H. at 374. particular speech because of the topic discussed or the idea or message “Government regulation of speec h is content based if a law applies to

review. We disagree. They contend, therefore, that we must subject the ordinance to strict scrutiny because the ordinance regulates speech based upon its content and viewpoint. defendants argue that “[t]ime, pla ce, and manner analysis is not appropriate” the respective beaches const itute traditional public forums. Nonetheless, t he p. 14 14

failure to exempt breastfeeding.” We therefore have no occasion to address this issue. defendants specifically acknowledge that “they are not seeking to invalidate the ordinance for its Although noting that the ordinance does not make any excepti on for breast - feeding, the exposure and to restrict or limit the right of a mother to breast - feed her child is discriminatory.” RSA 132:10 - d (2015) provides: “Breast - feeding a child does not constitute an act of indecent 4

wharves, docks, and squares, and the use thereof.” Further, RSA 47:17, XIII (2012) grants the city the power “[t]o regulate all streets and public ways, ordinance prohibiting females from exposing their nipples, RSA 47:17, VII Although there exists no express authority for a city to enact an

legi slature. See Dover News, Inc. v. City of Dover, 117 N.H. 1066, 1068 (1977). may exercise such powers as are expressly or impliedly granted to it by the (quotation omitted). Indeed, as a subdivision of the state, the City of Laconia considered a prominent feature in the American system of government.” Id. practice has existed from the foundation of the state, and has always been cities, villages, counties and towns, depends upon that distinction. The N.H. 1, 3 (1966) (quotation omitted). “Our whole system of local government in divisions, or to the people of tho se districts themselves.” State v. Grant, 107 may be committed to other bodies representing the people in their local the power to make local regulations, having the force of law in limited localities, “[W]hile general statutes must be enacted by the legislature, it is plain

this argument unpersuasive. of Laconia did not have the statutory authority to enact the ordinance. We find The defendants next argue that the ordinance is invalid because the City

IV. Authorization to Enact the Ordinance

C onstitution. 379 (citing Barnes, 501 U.S. at 568 - 69), we also find no violation of the Federal Constitution under the circumstances presented here, see Tagami, 875 F.3d at Constitution affords the defendant s no greater protection than the State free speech and express ion under the State Constit ution. As the Federal by determining that the ordinance does not violate the defendants’ right s to Accordingly, for these reasons, we cannot say that the trial court erred

violated and had only argued in “conclusory terms”). defendant’s due process argument as he had not explained how his rights wer e assertions. See State v. Ayer, p. 15 154 N.H. 500, 513 (2006) (declining to address 4 insufficient to warrant judicial review, we decline to respond to these adverse rulings by the trial court, without developed legal argument, is develop a legal argument. Because a mere laundry list of complaints regarding nipples were exposed.” Beyond these bare assertions, however, they do not had a double mastectomy w ho essentially lacks any breast tissue even if their “questionable if the City would be enforcing the ordinance against a female who 15

when a local ordinance does not expressly conflict with a s tate statute, it will that which a s tate statute prohibi ts, or vice versa. Id. at 625. Moreover, even 25. An actual conflict exists when a municipal ordinance or regulation permits when there is an actual conflict betwe en s tate and local regulation. Id. at 624 to, or inconsistent with, s tate law. Id. State law expressly preempts local law flows from the principl e that municipal legislation is invalid if it is repugnant Zoning Bd. of Adjustment, p. 15 155 N.H. 622, 624 (2007). The preemption doctrine been preempted by the State. Town of Rye Bd. of Selectmen v. Town of Rye 645:1, I (2016). It is well settled that towns cannot regulate a field that has The defendants next contend that the ordinance is preempted by RSA

V. Preemption

that the City had the authority to enact the ordinance. the defendants’ fundamental rights. Accordingly, we agree with the trial court under the State and Federal Constitutions. As such, it does not unduly restrict defendants’ constitutional rights to eq ual protection or freedom of speech 3. Furthermore, we have found that the ordinance does not violate the public nudity is substantially related to this purpose. See Grant, 107 N.H. at art. 1, § 180 - 1. We agree with the State that t he ordinance’s prohibition on safety, morals and public order.” Laconia, N.H., Code of Ordinances ch. 180, stated purpose of the ordinance is to uphold and sup port “public health, public ordinance. See Dover News, Inc., 117 N.H. at 1068. As we explained, the We believe that these statutory provisions authorize the city to enact the

libraries and other public institutions of the town.” protection, preservation and use of the public cemeteries, parks, commons, Specifically, RSA 31:39, I(a) empowers towns to make bylaws for “[t]he care, generally fall into the category of health, welfare, and public safety. See id. RSA 31:39 (Supp. 2017) to make bylaws for a vari ety of purposes which We have held that towns are empowered under the authority granted by

police powers of the state which grants them. Id. at 295. towns by the legislature must be interpreted and construed in light of the welfare.” Id. (quotation omitted). The express and implied powers granted to health, safety, morals, comfort, the protection of prosperity, and the general (1970). The police power is broad and “includes such varied interests as public inherent attribute of state sovereignty. Piper v. Meredith, 110 N.H. 291, 294 Moreover, the governmental authority known as the police power is an

ordinance” is “repugnant t o the constitution or laws of the state.” which may seem for the well - being of the city” so long as “no bylaw or (2012) gives the city the power to “make any other bylaws and regulations clothing to be worn by bathers and swimmers.” In addition, RSA 47:17, XV and swimming in the canals, rivers and other waters of the cit y, and the (2012) grants the city the power “to regulate the times and places of bathing p. 16 16

property based solely on that person’s sex/gender.” the ordinance discriminates by “exclud [ing] someone from being on public to be a topless female in public while allowing a male to be topless in public,” upon RSA 354 - A: p. 16 16 and :17, the defendants contend that by “mak [ing] it illegal motion to dismiss because the ordinance violates RSA chapter 354 - A. Relying Finally, the defendants argue that the trial court erred by denying their

VI. RSA C hapter 354 - A

645:1, I. For these reasons, we find that the ordinance is not preempted by RSA

employees were not covered by the Act in the first place”). amend ment’s failure could as easily have resulted from the belief that those legislative intent that such employees be covered, and observing that “the excluded legislative and judicial employees from its coverage demonstrated amendment to Public Employee Labor Relations Act that would have expressly 449 (1996) (rejecting as misguided argument that failure of proposed 1069; s ee also Appeal of House Legislative Facilities Subcom., 141 N.H. 443, failure to enact the proposed amendment.” Dover News, Inc., 117 N.H. at noted, however, “[w] e can discern no clear meaning from the legislature’s demonstrates legislative intent not to prohibit such conduct. As we have breasts, see 20 p. 16 16 HB 152 5 - FN, arguing that the failure of that measure legislation that would have specifically prohibited the public exposure of female The defendants point to an unsuccessful effort by legislators to enact

purpose of the statute. ordinance either expressly conflicts with RSA 645:1, I, or that it frustrates the 617, 623 (2014). Therefore, th ere is simply no basis for a claim that the and morals. See Prolerized New England Co. v. City of Manchester, p. 16 166 N.H. is indicative of legislative intent to occupy the field of regulation of public safety that this statute represents the kind of comprehensive regulatory scheme that See, e.g., Com. v. Quinn, 789 N.E.2d 138, 146 (Mass. 2003). Nor can it be said arguably can be read to prohibit such conduct as an act of gross lewdness. the contrary, although we need not decide the issue, this statute at least this statute specifically authorizes the public display of breasts by females. On cause affront or alarm.” The defendants do not — and c ould not — argue that gross lewdness under circumstances which he or sh e should know will likely person fornicates, exposes his or her genitals, or performs any other act of RSA 645:1, I, provides that “[a] person is guilty of a misdemeanor if such

(quotation omitted). preempts local regulation is a question of la w, which we review de novo. Id. matter of statutory interpretation and construction,” whether a s tate statute Henniker, p. 16 167 N.H. 745, 756 (2015). Because preemption “is essentially a be preempted whe n it frustrates the statute’s purpose. Forster v. Town of p. 17 17

racetrack, viola ted the respective jurisdiction ’ s anti - discrimination laws or ordinances. See Koire given to women, such as car wash discounts and discounted drink prices for women at a bar or The defendants cite cases from several j urisdictions that hold that various forms of preferences 5

covered by each gender. See Sachs, 92 P.3d at 29 (holding that, in addition to 5 makes a permissible distinction between the areas of the body that must be merely prohibits those who access public places from doing so in the nude, a nd 354 - A:16 or : p. 17 17. Rather, w e agree with the trial c ourt that the ordinance find that the ordinance constitutes unla wful discrimination in violation of RSA discriminates on the basis of sex. For the reasons already discussed, we do not the exposure of the female, but not the male, breast, the ordinance than rehash t he ir constitutional equal pro tection argument that, by prohibiting In advancing their statutory argument, the defendants do little more

unwelcome, objectionable or acceptable, desired or solicited. belonging to or purporting to be of any particular . . . sex . . . is sex . . .; or that the pa tronage or custom thereat of any person refused, withheld from or denied to any person on account of . . . advantages, facilities and privileges of any such place shall be advertisement to the effect that any of the accommodations, or mail any writte n or printed communication, notice or or, directly or indirectly, to publish, circulate, issue, display, post of the accommodations, advantages, facilities or privileges thereof; or indirectly, to refuse, withhold from or deny to such person any accommodation, because of the . . . sex. . . of any person, directly superintendent, agent or employee of any place of public person, being the owner, les se e, proprietor, manager, It shall be an unlawful discriminatory practice for any

A: p. 17 17 states: national origin is hereby recognized and declar ed to be a civil right.” RSA 354 age, sex, race, creed, color, marital status, physical or mental disability or access to places of public accommodation without discrimination because of in pertinent part, that “[t]he opportunity for every individual to have equal purpose s of chapter), :16 -:17 (public accommodation). RSA 354 - A:16 provides, public accommodation as provided therein. See RSA 354 - A:1 (title and prohibits, as relevant here, unlawful discrimination based upon sex in places of RSA chapter 354 - A, known as the “Law Against Discrimination,”

(2015) (quotation omitted). Rolling Green at Whip - Poor - Will Condo. Owners’ Association, 168 N.H. 87, 90 ascribe the plain and ordinary meanings to the words used.” Eldridge v. (2016). “We first examine the language of the statute, and, when possible, we statute considered as a whole. EEOC v. Fred Fuller Oil Co., 168 N.H. 606, 608 the final arbiters of the legislature’s intent as expressed in the words of the This argument requires us to engage i n statutory interpretation. We are p. 18 18

involve a distinction based upon the common understanding of what constitutes nudity. cases are readily distinguishable from the case at bar because, unlike in this case, they did not Com., Pa. Liquor Control Bd. v. Dobrinoff, 471 A.2d 941, 943 (Pa. Commw. Ct. 1984). These 602 (Iowa 1989); Peppin v. Woodside Delicatessen, 506 A.2d 263, 267 (Md. Ct. Spec. App. 1986); So. 2d 1106, 1108 - 09 (Fla. Dist. Ct. App. 1987); Ladd v. Iowa West Racing Ass’n, 438 N.W.2d 600, v. Metro Car Wash, 707 P.2d 195, 204 (Cal. 1985); City of Clearwater v. Studebaker’s D. Cl., 516

to find the ordinance unconstitutional. evidence in the trial court to satisfy its burden of proof, we would be compelled exacting standard, given that the government failed to present sufficient on other grounds). Were this court to subject Laconia’s ordinance to this national origin, or legitimacy . . . .” (quotation omitted) (superseded by statute classification involves a suspect class base d on race, creed, color, gender, a compelling State interest in order for its actions to be valid, when the (1993) (“We apply the strict scrutiny test, in which the government must show serve a compellin g State interest.”); LeClair v. LeClair, 137 N.H. 213, 222 distributes benefits or burdens on the basis of gender must be necessary to order to withstand scrutiny under this provision, a common law rule that abridged by this state on account of . . . sex.’ N.H. CONST. pt. I, art. 2. In constitution guarantees that ‘equality of rights . . . shall not be denied or Cheshire Medical Center v. Holbrook, 140 N.H. p. 18 187, 189 (1995) (“Our right are subject to the most exacting scrutiny . . . .” (quotation omitted)); (2004) (“Classifications based upon su spect classes or affecting a fundamental court must apply strict scrutiny. See In re Sandra H., 150 N.H. 634, 637 §§ 180 - 2, 180 - 4 (1998). This is a gender - based classification. Accordingly, the — but the man is not. Laconia, N.H., Code of Ordinances ch. 180, art. I, a backyard “visible to the public,” the woman is engaging in unlawful behavior man wear the exact same clothing on the beach, on Laconia’s main street, or in Laconia’s ordinance facially classifies on the basis of gender: if a woman and a which the defendants’ equal protection challenge should be analyze d. protection claim. We strongly disagree that rational basis is the lens through we part company with the majority when it rejects the defendants’ equal not preempted by statute; and it does not violate RSA chapter 354 - A. However, expression; it falls within the regulatory authority of the City of Laconia; it is ordinance does not violate the defendants’ rights to freedom of speech and dissenting in part. We agree with our colleagues in most respects: Laconia’s BASSETT, J., with whom HICKS, J., joins, concurring in part and

HICKS, J.