The Weird, Wild Legal History of Breasts and Nipples

#FreeTheNipple activists marching in New York City in an outtake from the movie, Free The Nipple.  (Image courtesy of Free The Nipple)

If you ever want feel like you’re back in the dark ages of female equality, look no further than the law books of certain U.S. states.

In Arizona, a woman can be arrested for indecent exposure if she exposes the areola or nipple of her breast if someone else is present.

“Hiking in the forest, in the nude,” is not a violation of the law in Los Angeles, but a woman who exposes her “private parts” to another person can be found guilty of a misdemeanor for public indecency.

Delaware women can be arrested if they expose their breasts “under circumstances that she knows her conduct will likely cause affront or alarm.”

Thank goodness Hollywood red carpets, a place where nipples have been known to make surprise — or planned — visits, is not in Indiana and Michigan. Both states qualify that “the showing of the female breast with less than a fully opaque covering of any part of the nipple” will find a woman guilty of a crime.

And, Louisiana specifies that “female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive” can receive three-years of jail time for a first-time offense and a $2500 fine.

Should you wish to breastfeed your child there, well, be on the look out.

These are just some of the many instances of legal gender inequality that compelled Lina Esco to write, direct, star and produce her new film, Free The Nipple, out Friday, December 12. The film is a natural outgrowth of Esco’s grassroots #FreeTheNipple movement, which has garnered support from Miley Cyrus, Lena Dunham, and Rumer Willis, among other celebrities.

“The first thing a child sees when it is born, the first thing it connects with, the first thing that nourishes it — it’s a nipple! It’s a boob!” exclaims Esco when discussing the origins of her film and movement with Yahoo Health.

The film, billed as a comedy but perhaps best described as an activist how-to guide, tells the story of a group of young women who engage in public demonstrations of toplessness to call attention to the fact that not only do women continue to be arrested for toplessness despite its being legal in New York, but that women’s bodies are subjected to different standards and rules than men.

“There are so many laws against women’s bodies – there are so few laws against men’s bodies,” says Esco. “This isn’t about the act of going topless – it’s paving the way for real conversation to happen, for equality.”

Esco’s work to make public breastfeeding not only legal but comfortable extends beyond the film. This past summer she created a public service announcement called “Everybody’s Got To Eat,” which helped result in Facebook changing its terms of use to no longer ban photos of breastfeeding mothers.

“Why should a mother have to go through all sorts of weird situations —from going into a bathroom or hiding in a corner — just to breastfeed a child,” says Esco, “In our society, a mother who wants to breastfeed in public is already shamed so much. That’s not a great place to be as a mother who is doing the most basic human act.”

Free The Nipple the film is a prime example of art-imitating-life-imitating art. It is notable while watching the film that the first half of the movie contains blurred, censored nipples, while the second half does not: When they started filming, police threatened to shut down production — despite female toplessness being legal in New York since 1992 — because of the possibility of it being misinterpreted as pornography.

This motivated Esco to shoot the latter part of the movie without permits, stealing shots and making every scene with public, topless protest an actual public, topless protest. 

Today’s #FreeTheNipple movement isn’t all that dissimilar to the original efforts to allow for nipples to be seen in public.

Except at that time, it was guys who wanted to show skin. Yes, up until the mid 1930’s it was illegal to public flaunt the male nipple in public.

The nipple-stifling swimsuits men we forced to wear prior to 1936, when it became legal to expose nipples in New York state. (Photo by Getty Images)

The first protests occurred on Coney Island in the early 1930’s, where men gathered to fight for the right to swim and sunbathe in shirtless swim trunks. In 1935, another group of male protesters got themselves arrested in Atlantic City for hitting the beach while baring their torsos. In 1936, these men legally gained the right to show their nipples in public, laying the foundation for existing New York state laws that allow women to be topless wherever a man is legally allowed to be.

The difference, however, is that women can still be charged with public indecency, disturbing the peace, or lewd behavior in many of these places where toplessness is purportedly legal.

Double-standards about the public presentation of male and female bodies subsisted even after the initial legal changes: In 1962, a bikini-clad Marilyn Monroe had to ensure that her navel remained covered up in the film Something’s Got To Give, and in 1986 seven women were arrested in Rochester, New York for sunbathing topless on a summer day.

Even Marilyn Monroe has to cover up in the 1962 film, Something’s Gotta Give.

In 2005, a woman named Phoenix Feeley is wrongly arrested in New York for going topless despite it being legal there and is later awarded $29,000 in damages. She was arrested again in 2011 in New Jersey for sunbathing topless. The state said she was in violation of an ordinance banning public nudity; Feeley said that toplessness was not the same as nudity and she should be granted the same rights as men. (New Jersey has no explicit anti-topless laws on the books.)

She went on a 16-day hunger strike while in jail for refusing to pay the $816 fine for her crime and was ultimately released on time served.

In discussing just what it is that society finds so threatening about nipples, Esco recounted a story about a man who recently told her that if she was going to be topless, he “couldn’t help” but look at her breasts as sexual things. She told the man, “Ok and that’s fine…But what if I’m here topless and having dinner with you for five hours or something. At some point, aren’t you going to get tired at looking at my boobs? Aren’t you going to have to look at my face?”

The man admitted that, indeed, if he was forced to look at breasts for an extended period of time, he would be able to see the person behind them, and not just the idea of sex. 

“Maybe that’s what America needs,” Esco sighs, “A big flash of boobies so they can just get over it.”

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