Amicus Curiae Brief — Heidi C. Lilley, Kia Sinclair, and Ginger M. Pierro, Petitioners v. New Hampshire

No. 19-64

IN THE

Supreme Court of the United States

__________

HEIDI C. LILLEY, KIA SINCLAIR, AND GINGER M. PERRIO,

Petitioners,

v.

NEW HAMPSHIRE,

Respondent.

__________

On Petition for Writ of Certiorari to the

Supreme Court of New Hampshire

__________

BRIEF OF AMICUS CURIAE FOUNDATION

FOR MORAL LAW IN SUPPORT OF

RESPONDENT

__________

JOHN A. EIDSMOE

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

eidsmoeja@juno.com

334-262-1245

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

STATEMENT

OF

IDENTITY

AND

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 2

I.

The Laconia Ordinance Does Not

Violate the Free Speech Clause. ......................... 2

A. The Constitution is the “supreme Law

of the Land.” ...................................................... 2

B. The

Constitution

should

be

interpreted according to the Framers'

intent. ................................................................ 3

C. The Framers of the First Amendment

did not intend to include nudity as

protected speech ................................................ 4

II.

The Laconia Ordinance Does Not

Violate the Equal Protection Clause................. 12

ii

A. The Equal Protection Clause must be

interpreted according to its Framers'

intent ............................................................... 12

B. The Framers of the Equal Protection

Clause never intended the clause to

protect public nudity ....................................... 13

III. Petitioners Have Failed to Show an

Adequate Basis for This Court to Grant

Certiorari ........................................................... 14

CONCLUSION ......................................................... 16

iii

TABLE OF AUTHORITIES

Page

Cases

Barnes v. Glen Theatre, Inc., 501 U.S. 560

(1991) .................................................................... 12

Clark v. Community for Creative NonViolence, 468 U.S. 288 (1984) ................................ 9

Dred Scott v. Sanford, 60 U.S. (19 How.) 393

(1857) .................................................................... 13

Free the Nipple - Fort Collins v. City of Fort

Collins, Co., 916 F.3d 792 (10th Cir. 2019) ... 14-15

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ...................................................................... 3

McGuire v. State, 489 So. 2d 729 (Fla. 1986) ............. 8

Obergefell v. Hodges, 135 S.Ct. 2584 (2015) ............. 17

Paris Adult Theatre I v. Slaton, 413 U.S. 49

(1973) .................................................................... 16

People v. Hoffman, 507 N.Y.S.2d 977 (N.Y.

1986) ..................................................................... 10

Plessy v. Ferguson, 163 U.S. 537 (1896) ................... 13

Roth v. United States, 354 U.S. 476 (1957) ............ 4-6

iv

South Carolina v. United States, 199 U.S.

437 (1905) ............................................................... 4

United States v. O'Brien, 391 U.S. 367 (1968) ... 11-12

Constitutions, Statutes, and Regulations

Laconia,

New

Hampshire

Code

of

Ordinances ch. 180, art. I, § 180-2 (1998) ............. 1

U.S. Const. amend. I ......................................... passim

U.S. Const. amend. XIV .................................... passim

U.S. Const. art. VI ....................................................... 2

Other Authority

Alden T. Vaughan, ed., The Puritan

Tradition in America, 1620-1730 (rev. ed.

1972) ....................................................................... 8

Andrew M. Alison, The Real Thomas

Jefferson (1981) ...................................................... 4

E.A. Gjelten, Indecent Exposure Laws,

Lawyers.com,

https://www.lawyers.com/legalinfo/criminal/criminal-law-basics/thecrime-of-indecent-exposure.html ........................... 8

George Washington, Farewell Address, in

American Historical Documents (New

York: Barnes and Noble, Inc., 1960)...................... 3

v

J.E. Robinson and R.V. Short, Changes in

Breast Sensitivity at Puberty, During the

Menstrual Cycle, and at Parturition,

British Medical Journal 1 (1977) ......................... 14

Philippa Levine, Nakedness and the Colonial

Imagination, 50 Victorian Studies 189

(2008) ...................................................................... 6

The World of the American Revolution: A

Daily Life Encyclopedia ..................................... 6-7

William E. Nelson, The Common Law in

Colonial America (2009) ........................................ 8

1

STATEMENT OF IDENTITY AND INTEREST

OF AMICUS CURIAE1

Amicus Curiae Foundation for Moral Law (“the

Foundation”),

is

a

national

public-interest

organization based in Montgomery, Alabama,

dedicated to strict interpretation of the Constitution

according to the intent of its Framers, defending the

unalienable rights guaranteed by the Constitution,

and defending the moral principles that underlie the

Constitution. The Foundation has an interest in this

case because it believes that the Framers never

intended for the First Amendment to protect nudity

and that ruling in the Petitioners’ favor will subject

the moral principles that underlie the Constitution to

even further decay.

SUMMARY OF ARGUMENT

The Supreme Court of New Hampshire correctly

ruled that the Laconia, New Hampshire Code of

Ordinances ch. 180, art. I, § 180-2 (1998)2 violates

1 Amicus Curiae Foundation for Moral Law files this brief

with consent from both Petitioner and Respondent. Counsel of

record for all parties received notice at least 10 days prior to the

due date of amicus’s intention to file this brief. All parties have

consented. Counsel for amicus authored this brief in its

entirety.

No person or entity—other than amicus, its

supporters, or its counsel—made a monetary contribution to the

preparation or submission of this brief.

The ordinance defines "Nudity" as "[t]he showing of the

human male or female genitals, pubic area or buttocks with less

than a fully opaque covering, or the showing of the female

breast with less than a fully opaque covering of any part of the

nipple." In keeping with the ordinance, Amicus will use the

2

2

neither the First Amendment Free Speech Clause nor

the Fourteenth Amendment Equal Protection Clause.

The Foundation contends that Petitioners' conduct

does not constitute protected First Amendment

"speech" and that disparate treatment, if any,

between men and women in this ordinance is

consistent with the Equal Protection Clause.

ARGUMENT

I.

The Laconia Ordinance Does Not Violate

the Free Speech Clause.

Although Petitioners did not base their appeal

primarily on free speech issues, they claimed free

speech violations in their appeal to the New

Hampshire Supreme Court, and that Court devoted

nearly half of its opinion to free speech analysis.

Accordingly, Amicus will address the free speech

issue in this section of our brief.

A.

The Constitution is the “supreme Law of

the Land.”

Our Constitution dictates that the Constitution

itself is the “supreme Law of the Land.” U.S. Const.

art. VI, cl. 2. All judges take their oath of office to

support the Constitution itself—not a person, office,

government body, or judicial opinion. Id. Amicus

respectfully submits that this Constitution and the

solemn oath thereto are still relevant today and

terms "nude" and "nudity" as applied to Petitioners even though

they were nude only from the waist up.

3

should control, above all other competing powers and

influences, the decisions of federal courts.

Chief Justice John Marshall observed that the

very purpose of a written constitution is to ensure

that government officials, including judges, do not

depart from the document’s fundamental principles.

“[I]t is apparent that the framers of the constitution

contemplated that instrument, as a rule of

government of courts …. Why otherwise does it direct

the judges to take an oath to support it?” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 179-80 (1803).

B.

The Constitution should be interpreted

according to the Framers' intent.

George Washington, who served as President of

the Constitutional Convention and as President of

the United States when the First Amendment was

adopted and ratified, said in his Farewell Address,

If, in the opinion of the people, the

distribution or modification of the

Constitutional powers be at any

particular wrong, let it be amended in

the way the Constitution designates.

But let there be no change by

usurpation; though this may in one

instance be the instrument of good, it is

the customary weapon by which free

governments are destroyed.3

George Washington, Farewell Address, in American

Historical Documents 144 (New York: Barnes and Noble, Inc.,

1960).

3

4

Thomas Jefferson, third President and primary

author of the Declaration of Independence, echoed

the same theme:

On every question of construction,

[let us] carry ourselves back to the time

when the Constitution was adopted,

recollect the spirit manifested in the

debates, and instead of trying what

meaning may be squeezed of the text, or

invented against it, conform to the

probable one in which it was passed.4

And this Court honored that principle in South

Carolina v. United States, 199 U.S. 437, 448 (1905),

The Constitution is a written

instrument. As such its meaning does

not alter. That which it meant when

adopted, it means now.

C.

The Framers of the First Amendment

did not intend to include nudity as

protected speech.

The First Amendment language, "or abridging the

freedom of speech," mentions no exceptions, but its

Framers did not intend that the amendment protect

every possible form of expression.

As Justice

Brennan observed for this Court in Roth v. United

States, 354 U.S. 476, 482-83 (1957),

4 Andrew M. Alison, The Real Thomas Jefferson 382 (1981).

5

The guaranties of freedom of

expression in effect in 10 of the 14

States which by 1792 had ratified the

Constitution,

gave

no

absolute

protection for every utterance. Thirteen

of the 14 States provided for the

prosecution of libel, 11 and all of those

States made either blasphemy or

profanity, or both, statutory crimes. As

early as 1712, Massachusetts made it

criminal to publish 'any filthy, obscene,

or profane song, pamphlet, libel or mock

sermon' in imitation or mimicking of

religious services. Acts and Laws of the

Province of Mass. Bay, c. CV, § 8 (1712),

Mass. Bay Colony Charters & Laws 399

(1814). Thus, profanity and obscenity

were related offenses.

In light of this history, it is apparent

that the unconditional phrasing of the

First Amendment was not intended to

protect every utterance. This phrasing

did not prevent this Court from

concluding that libelous utterances are

not within the area of constitutionally

protected speech. Beauharnais v. People

of State of Illinois, 343 U.S. 250, 266, 72

S.Ct. 725, 735, 96 L.Ed. 919. At the time

of the adoption of the First Amendment,

obscenity law was not as fully developed

as libel law, but there is sufficiently

contemporaneous evidence to show that

6

obscenity,

protection

press.

too, was outside

intended for speech

the

and

The Court therefore concluded on p. 485, "We hold

that obscenity is not within the area of

constitutionally protected speech or press," and even

Justice Douglas, writing in dissent at p. 512, agreed

that "No one would suggest that the First

Amendment permits nudity in public places...." The

Framers' intent was to state the general principle

that speech is protected and leave it to the courts and

legislatures to work out the exceptions.

They

intended to give strong protection to speech, but they

did not consider every possible form of expression to

be "speech" entitled to First Amendment protection.

The representatives of the various states in Congress

would not have passed an amendment that

invalidated the laws on the books of their states, and

even if they had, the states would never have ratified

such an amendment.

In the days leading up to the adoption of the First

Amendment, nudity was not condoned and was often

prohibited. As Philippa Levine has noted concerning

colonies in general, "A lack of clothing among

colonized individuals has connoted primitiveness and

savagery since at least the seventeenth century."5

And according to The World of the American

Revolution: A Daily Life Encyclopedia,

5 Philippa Levine, Nakedness and the Colonial Imagination,

50 Victorian Studies 189 (2008).

7

Europeans and European Americans

kept their bodies covered from head to

toe. ...

To display one's naked body (or even

parts of the body) in public indicated at

the least that one was uncouth, but to

most, it also indicated a depraved and

licentious nature. ...

Since most 18th-century Americans

did not live with or expect the type of

privacy that 21st-century Americans do,

it is likely that certain inadvertent

exposure of bare skin was accepted or

ignored. ... [M]ost people would have

seen a bare breast as a woman breastfed

a child, and this would not have been

considered scandalous -- although by the

mid-18th century "genteel" women did

not usually nurse in public or formal

settings, particularly if men were there.

... By the time of the Revolution and

even more in the postwar period, ideas

of gentility and virtue, especially among

the well-to-do, meant individuals who

wanted to be considered virtuous

"ladies" or "gentlemen" of the new

republic dressed modestly, eschewing

British fashions.6

The World of the American Revolution: A Daily Life

Encyclopedia, 290-292.

6

8

Accordingly, New Englanders not only prohibited

nudity among European settlers but also extended

those prohibitions to Native American nations that

chose to become part of their colony. One such

ordinance for the Town of Noonatomen read, "6. If

any woman shall goe with naked breasts, they shall

pay two shillings."7 Likewise, The Common Law in

Colonial America tells of a Virginia case of "a woman

prosecuted for nudity."8

"Historically, indecent

exposure was a 'common law' offense, meaning it

originated from custom and court decisions rather

than by statutes."9 As the Florida Supreme Court

said in McGuire v. State, 489 So. 2d 729, 732-33 (Fla.

1986), "Since the beginning of civilization public

nudity has been considered improper. We are fully

aware of the changing social values as expressed in

new modes of dress, but are convinced that by

enacting Section 877.03, Florida Statutes (1975), the

Legislature intended to prohibit adult females from

appearing in public places, including Florida's

beaches, with openly exposed breasts."

Seeing how nudity was regarded in 18th-century

America, clearly the Framers of the First

Amendment did not intend to include nudity as a

7 Alden T. Vaughan, ed., The Puritan Tradition in America,

1620-1730, 266 (rev. ed. 1972).

1 William E. Nelson, The Common Law in Colonial

America 85 (2009).

8

E.A. Gjelten, Indecent Exposure Laws, Lawyers.com,

https://www.lawyers.com/legal-info/criminal/criminal-lawbasics/the-crime-of-indecent-exposure.html (last visited Nov. 12,

2019).

9

9

form of protected speech. And if nudity is not

protected speech, then questions of strict scrutiny,

compelling interests, or substantial interests do not

apply, because no constitutionally-protected right is

infringed.

This does not change simply because a person

intends nudity to be a means of expressing an idea.

If it were, then a nude person engaged in a

demonstration in support of a cause would be

protected by the First Amendment while another

nude person sunbathing on the beach would not. And

citizens making complaints, officers investigating and

making arrests, and judges and juries deciding guilt

or innocence would have to intuitively perceive the

nude person's intent. By this reasoning a nude

sunbather or nude yoga practitioner could claim,

either before, during, or after the arrest, that "I'm

demonstrating in favor of nudity" or "I'm protesting

the clothing ordinance" and thereby avoid

prosecution.

Recognizing this, this Court has

observed in Clark v. Community for Creative NonViolence, 468 U.S. 288, 298 n.7 (1984):

7. When the Government seeks to

regulate conduct that is ordinarily nonexpressive it may do so regardless of the

situs of the application of the regulation.

Thus, even against people who choose to

violate Park Service regulations for

expressive purposes, the Park Service

may enforce regulations relating to

grazing animals, 36 CFR § 50.13 (1983);

flying model planes, § 50.16; gambling, §

10

50.17; hunting and fishing, § 50.18;

setting off fireworks, § 50.25(g); and

urination, § 50.26(b).

And as the New York Court of Appeals said in

People v. Hoffman, 507 N.Y.S.2d 977, 980 (N.Y.1986),

While there may be contexts in which a

public

display

of

nudity

would

reasonably be understood as a means of

communicating an idea, it cannot be

said that nude sunbathing on a beach is

a form of expression likely to be

understood by the viewer as an attempt

to convey a particular point of view.

Although defendant apparently has a

specific philosophy regarding nudism,

his mere nude appearance did not create

a great likelihood that his philosophy

would be imparted to the public. Rather,

the likely message to viewers was that

defendant, like many others on the

beach, had doffed his clothing to

enhance his comfort, acquire an even

tan or simply display his body to others.

Such conduct cannot be considered

sufficiently expressive to invoke the

protections of the First Amendment and

article I, § 8 of the New York State

Constitution merely because its setting

was a beach where nudity is

commonplace.

11

In the case at hand, nothing in the actions of the

Petitioners would give any indication that their

nudity was a means of protest. No onlooker would

have any reason to think they were engaged in

protest. Petitioner Pierro was engaged in yoga on the

beach, and Petitioners Lilley and Sinclair were

simply "at the beach."

According to the New

Hampshire Supreme Court, Lilley "announced to the

arresting police officer that [she] was acting in a

protest and that [she] did not believe that [she] could

be arrested for protesting." That's like a person

mowing his lawn nude and then claiming he cannot

be arrested for mowing his lawn. Lilley was not

arrested for protesting; she was arrested for being

nude in public.

In United States v. O'Brien, 391 U.S. 367 (1968),

this Court considered whether burning a draft card

was a form of protected speech. Without determining

whether it was speech or not, Chief Justice Warren

held for this Court at p. 377 that "a government

interest is sufficiently justified if it is within the

constitutional power of the Government; if it furthers

an important or substantial interest; if the

governmental interest is unrelated to the suppression

of free expression, and if the incidental restriction on

alleged First Amendment freedoms is no greater than

is essential to the furtherance of that interest." The

Court noted that the prohibition on destruction of

draft cards did not prohibit O'Brien from speaking

out against the draft but prohibited only the

"noncommunicative impact of his conduct." Id. at 382.

Justice Harlan concurred, noting that "O'Brien

manifestly could have conveyed his message in many

12

ways other than by burning his draft card." Id. at

389. Likewise, in Barnes v. Glen Theatre, Inc., 501

U.S. 560 (1991), this Court found that although nude

dancing (unlike general nudity) might be expressive

activity, "Indiana's requirement that the dancers

wear at least pasties and a G-string is modest, and

the bare minimum necessary to achieve the state's

purpose."

Similarly, Petitioners were not arrested for

speaking out against the nudity ordinance or

conducting a demonstration aimed at amending the

ordinance to eliminate breasts from the definition of

nudity; they were arrested only for being nude in

public. They could have conveyed their message in

many ways other than by being nude in public.

II.

The Laconia Ordinance Does Not Violate

the Equal Protection Clause.

The New Hampshire Supreme Court properly

concluded that Laconia's ordinance does not violate

the Equal Protection Clause of the Fourteenth

Amendment.

A.

The Equal Protection Clause must be

interpreted according to its Framers'

intent.

The reasons set forth in Parts I.A-B of this brief

for interpreting the First Amendment as its Framers

intended it apply also to the interpretation of the

Equal Protection Clause of the Fourteenth

Amendment.

13

B.

The Framers of the Equal Protection

Clause never intended the clause to

protect public nudity.

The Fourteenth Amendment was enacted in 1868

primarily to address problems of racial equality. An

immediate purpose was to eliminate concerns about

the constitutionality of the Civil Rights Act of 1866,

which effectively overturned Dred Scott v. Sanford,

60 U.S. (19 How.) 393 (1857), and provided that

"citizens of every race and colour ... [have] full and

equal benefit of all laws and proceedings for the

security of person and property, as is enjoyed by

white citizens." In his famous dissent in Plessy v.

Ferguson, 163 U.S. 537 (1896), Justice Harlan argued

at 562 that the Fourteenth Amendment prohibited "a

badge of servitude wholly inconsistent with the civil

freedom and equality before the law established by

the Constitution."

While the Equal Protection Clause may be

extended beyond racial discrimination to other forms

of discrimination, an ordinance prohibiting nudity

certainly does not impose a "badge of servitude" on

anyone.

The purpose and intent of the Equal

Protection Clause certainly was not intended to

prohibit public conduct that almost everyone at that

time would have considered scandalous and immoral.

Even if Congress had passed the amendment with

that intent in mind (which they certainly did not), the

states would never have ratified an amendment with

that purpose.

14

As the New Hampshire Supreme Court correctly

observes, the Laconia ordinance prohibits public

nudity for both men and women. However, the

ordinance defines nudity as including exposure of the

breasts for women but not for men. The reason is

self-evident:

men and women are anatomically

different, and one of those difference is that women's

breasts are different in appearance from men's and

fulfill a biological and sexual function that men's do

not,10 and the public exposure of female breasts

produces reactions that public exposure of men's

chests does not.11 Requiring men to cover their

chests makes about as much sense as placing urinals

in women's restrooms in the name of "equal

protection."

III. Petitioners Have Failed to Show an

Adequate Basis for This Court to Grant

Certiorari.

In a valiant but futile effort to demonstrate a split

among jurisdictions on this issue, Petitioners rely

largely upon Free the Nipple - Fort Collins v. City of

Fort Collins, Co., 916 F.3d 792 (10th Cir. 2019), in

which the Tenth Circuit affirmed a District Court's

preliminary injunction against enforcement of an

ordinance which provided that "No female who is ten

910) years of age or older shall knowingly appear in

10 Although this is medically incorrect, in popular parlance

it is common to say women have breasts but men do not.

See, J.E. Robinson and R.V. Short, Changes in Breast

Sensitivity at Puberty, During the Menstrual Cycle, and at

Parturition, British Medical Journal 1, 1188-91 (1977).

11

15

any public place with her breast exposed ...."

However, several factors should be noted about the

Fort Collins case:

(1)

The Fort Collins ordinance expressly

applied to females but not to males; the Laconia

ordinance prohibited both male and female public

nudity but defined them differently.

(2) The City of Fort Collins acknowledged that

its ordinance was a "gender-based classification."

(3)

The Tenth Circuit only affirmed the

District Court's preliminary injunction. The City of

Fort Collins decided not to pursue the case further.

(4) The Tenth Circuit expressly stated in its

opinion,

We recognize that ours is the

minority viewpoint. Most other courts,

including a recent (split) Seventh

Circuit panel, have rejected equal

protection challenges to female-only

toplessness bans.

The Tenth Circuit might choose to go beyond the

other circuits in extending constitutional protection

to nudity, and the City of Fort Collins might choose

not to contest the Tenth Circuit's decision. But that

does not constitute a basis for this Court to grant

certiorari and overturn a New Hampshire Supreme

Court decision that is consistent with the common

law and with the United States Constitution and

16

with the previous decisions of this Court and of the

vast majority of other courts.

CONCLUSION

Former Chief Justice Warren Burger wrote for

this Court in Paris Adult Theatre I v. Slaton, 413

U.S. 49, 69 (1973) that

The issue in this context goes beyond

whether someone, or even the majority,

considers the conduct depicted as

"wrong" or "sinful." The States have the

power to make a morally neutral

judgment that public exhibition of

obscene material, or commerce in such

material, has a tendency to injure the

community as a whole, to endanger the

public safety, or to jeopardize, in Chief

Justice Warren's words, the States'

"right ... to maintain a decent society."

And the nudity or obscenity prohibited in the Paris

Adult Theatre was in a theater behind closed doors

and open only to consenting adults. The nudity

prohibited by the Laconia ordinance is in public in

full view to all, young and old alike.

Petitioners say on p. 26 of their brief, "Laconia's

Ordinance regulating women's dress by proscribing

exposure of their breasts clearly is grounded in such

archaic, overbroad, and obsolescent notions about

gender."

17

But that is not a basis for constitutional

adjudication.

If in fact ordinances like that of Laconia are

archaic and obsolete, Petitioners and their allies can

work to change them through city councils, county

commissions, state legislatures, and appeals to public

opinion.

But to impose this sweeping moral and aesthetic

change from the top down by Court edict would, in

the late Justice Scalia's words, "violate a principle

even more fundamental than no taxation without

representation: no social transformation without

representation." Obergefell v. Hodges, 135 S.Ct. 2584,

2629 (2015) (Scalia, J., dissenting).

The Foundation urges this Court

Petitioners' petition for writ of certiorari.

to

Respectfully submitted,

JOHN A. EIDSMOE

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

334-262-1245

eidsmoeja@juno.com

Counsel for Amicus Curiae

deny