Civil Rights: Bear Arms? This Couple Says They Can Bare All

By PURNA NEMANI – Courthouse News Service

HONOLULU (CN) – A husband-and-wife duo pleaded not guilty to criminal charges of failing to have a protest permit on National Topless Day, a day they marked with an X on their calendar and bare torsos.

In a press conference outside of the arraignment, the American Civil Liberties Union said the citation constitutes a violation of the couple’s right to free speech.

Jamie and Tess Meier were cited by the Honolulu Police Department on Aug. 21 for demonstrating on the Waikiki oceanfront after doing the same in Haleiwa on the North Shore last year. The shirtless couple taped red Xs over their nipples, waved signs and circulated a petition for gender equality and women’s right to go bare-chested in public. The yearly event is held in late August across the United States in honor of Women’s Equality Day, which commemorates the 1920 passage of the 19th Amendment to the U.S. Constitution granting women the right to vote.

For 2011, the Meiers chose to protest in a high-profile area at the center of Waikiki, near the statue of the late famed Hawaiian surfer, Duke Kahanamoku. They say the area draws thousands of tourists and residents daily.

“The protesters were on the makai [ocean-facing] side of Kalakaua Avenue, just Diamondhead [east] of the intersection of Kalakaua and Uluniu,” ACLU attorney Laurie Temple said in a letter to prosecutors. “There is a small, circular driveway adjacent to the grassy stage, and there is a large banyan tree under which the protest occurred. The protesters stood on the sidewalk fronting Kalakaua Avenue until HPD [the Honolulu Police Department] instructed them to move out of the view of Kalakaua Avenue traffic. It is unclear whether they were on a public sidewalk or in a public park at the time they were cited; nevertheless, as set forth more fully infra, regardless of whether they were standing on a sidewalk or in a park, HPD’s actions were unconstitutional.”

Police ultimately terminated the Meiers’ protest and charged them with violating a city ordinance that requires a parks department permit for “meetings or gatherings or other similar activity held by organizations, associations or groups.”

On the day of the protest, Tess Meier spoke with ABC affiliate KITV. “We are fighting for equal topless rights for women,” she said. “And, as much as people love to laugh and smile at that concept, it’s about gender equality. You know, the guys can do what women can’t, and that’s just not fair.”

The Hawaii branch of the ACLU and attorney Matthew Winter of Davis Levin Livingston appeared with the couple in court Monday morning and urged Honolulu prosecutors to drop the petty misdemeanor charges against the Meiers. At the arraignment, the city said it will take one month to review the constitutionality of the charges.

“The law in this area is very well settled,” Winter said in a statement. “No permit was needed for the Meiers’ protest and it was obviously the intent of the HPD to terminate it because they either objected to the content of the Meiers’ speech or their method of expression. The Meiers had a right to protest on the sidewalk, in the parks or at any other public forum without a permit. The U.S. and Hawaii Constitutions protect our right to free speech and HPD has an obligation to uphold and respect those rights.”

Temple, the ACLU lawyer, added that this matter takes on significance with Honolulu hosting the leaders’ meeting of the Asian Pacific Economic Cooperation in November.

“As APEC approaches and Oahu ramps up readiness, law enforcement is put on notice that using the power of the state to silence lawful protest will never be tolerated, whether it’s two people on a sidewalk or a thousand people in a park,” Temple said in a statement.

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