The New Hampshire Supreme Court just handed down a victory for free speech in Attorney General v. Hood. As is often the case, defending free speech means supporting viewpoints that most of us find grotesque and hateful. However, the justices rejected the position of the Portsmouth Police Department that it could force the removal of a racist banner from an overpass. Such signs and flags are commonly allowed, but the police and prosecutors insisted that racist messages “interfered with the rights” of other citizens.The controversy began on July 30, 2022, when a group of roughly ten people with NSC-131, a “pro-white, street-oriented fraternity dedicated to raising authentic resistance to the enemies of [its] people in the New England area,” hung banners from the overpass, including one reading “KEEP NEW ENGLAND WHITE.”
The police informed the leader, Christopher Hood, that they were violating a Portsmouth municipal ordinance that prohibited hanging banners from the overpass without a permit. While the group removed the banners, it later posted statements on the incident. The state responded by filing complaints against the defendants seeking civil penalties and injunctive relief for their alleged violation of RSA 354-B:1.
Notably, the state did not deny that groups routinely hang flags and signs from overpasses. However, it claimed that hanging banners reading “Keep New England White” was “motivated by race and interfered with the lawful activities of 2 others.”
N.H. Stats. 354-B:1 provides,
All persons have the right to engage in lawful activities and to exercise and enjoy the rights secured by the [constitutions and laws] without being subject to actual or threatened physical force or violence against them or any other person or by actual or threatened damage to or trespass on property when such actual or threatened conduct is motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability….
It shall be unlawful for any person to interfere or attempt to interfere with the rights secured by this chapter.
The justices held that the enforcement in this case violated the the New Hampshire Constitution’s free speech provision:
[T]he State alleged that the defendants “trespassed upon the property of the State of New Hampshire and the City of Portsmouth when [they and other individuals] displayed banners reading ‘Keep New England White’ from the overpass without a permit.” In objecting to Hood’s motion to dismiss, the State argued that “[t]he defendant displayed a banner upon the fencing—causing a thing to enter upon land in possession of another, without any prior authorization from city or state authorities.” Because the State alleged that the defendants intentionally invaded the property of another, and because “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,” we conclude that the State’s complaints sufficiently alleged a civil trespass.
Nonetheless, we must next determine whether the State’s proposed construction of the Act, applying the aforementioned definition of trespass, violates the defendants’ constitutional rights to free speech…
Government property generally falls into three categories — traditional public forums, designated public forums, and limited public forums. Here, the trial court correctly reasoned that because “application of the Civil Rights Act requires no consideration of the relevant forum or the nature of the underlying regulations as to that forum,” it applies “with equal force in traditional public fora as it does in limited or nonpublic fora.” We agree with the trial court’s assessment and proceed to the regulation at issue.
Government regulation of speech is content-based if a law applies to a particular type of speech because of the topic discussed or the idea or message expressed. The State argues that the Act “does not become a content or viewpoint-based action because the State relies upon a defendant’s speech.” Rather, it maintains that “[c]onsidering an actor’s motivation to assess whether that remedy may be warranted has no impact on the person’s right to freedom of speech, even when proof of motivation relies upon evidence of the person’s speech, because a person’s motivation has always been a proper consideration.” We disagree.
The Act prohibits threatened and actual conduct only when “motivated by race, color, national origin, ancestry, sexual orientation, sex, gender identity, or disability.” Thus, we agree with the trial court’s assessment that “[b]ecause the Civil Rights Act’s additional sanctions apply only where a speaker is ‘motivated by race’ or another protected characteristic, it is ‘content-based’ in that it ‘applies to … particular speech because of the topic discussed or the idea or message expressed.'”
Content-based restrictions must be narrowly tailored to serve a compelling government interest. The State asserts that the requirement that a trespass be unprivileged or otherwise unlawful functions as a limitation sufficient to prevent its construction of the Act from being unconstitutionally overbroad. We are not persuaded. The trial court determined, and we agree, that although “prohibiting or discouraging interference with the lawful rights of others by way of bias-motivated conduct (including actual trespass) is a compelling government interest,” the State’s construction of the Act “is overly broad and not narrowly tailored to that end because, so construed, the Civil Rights Act applies in numerous circumstances which have no relation to this interest.”
The ruling is notable in part because of the position of various Democratic leaders that hate speech is not protected under the First Amendment. I have spent years contesting that false claim, including in my recent book “The Indispensable Right: Free Speech in an Age of Rage.”
Democratic Vice Presidential candidate and Minnesota Gov. Tim Walz repeatedly claimed that “There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy.”
Ironically, this false claim, repeated by many Democrats, constitutes one of the most dangerous forms of disinformation. It is being used to convince a free people to give up some of their freedom with a “nothing to see here” pitch.
In prior testimony before Congress on the censorship system under the Biden administration, I was taken aback when the committee’s ranking Democrat, Del. Stacey Plaskett (D-Virgin Islands), declared, “I hope that [all members] recognize that there is speech that is not constitutionally protected,” and then referenced hate speech as an example.
That false claim has been echoed by others such as Sen. Ben Cardin (D-Md.), who is a lawyer. “If you espouse hate,” he said, “…you’re not protected under the First Amendment.” Former Democratic presidential candidate Howard Dean declared the identical position: “Hate speech is not protected by the First Amendment.”
Even some dictionaries now espouse this false premise, defining “hate speech” as “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”
The Supreme Court has consistently rejected Gov. Walz’s claim. For example, in the 2016 Matal v. Tam decision, the court stressed that this precise position “strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).
There is a world of difference between “hate speech” and manipulative, deceitful infowarfare. The distinction is authenticity. The group hanging the banner “Keep New England White” is not trying to dupe anyone, imposter as someone else, nor misrepresent the positions of others. They have authenticity on their side, even if you find the message disgusting.
That is not nearly as damaging to public confidence as public frauds waged for political effect. The devious infowarrior crafting a fraud for political power-seeking is exemplified by the Blinken-Morrell-Biden whopper pushed out assisted by the 51 spies that lie. How can elections cycles be considered free and fair when the powerful and well-connected are allowed to employ public frauds to dupe the electorate? That undermines “the consent of the governed” — a poetic phrase capturing the first principle of American government. That consent implies informed consent, and thus the 1st Amendment would undermine Madisonian self-government if recklessly stretched to include duping the electorate.
Public frauds should NOT be prosecuted. That is the proper interpretation of 1A. That said, civil lawsuits are the proper punishment for the intentional waging of falsehoods to tilt elections. The key element of the tort is inauthenticity in the public square with intent to confuse or deceive. Legally, this can be seen as quite distinct from content which is thought offensive or noxious yet bears the virtues of being authentic and candid.
* There is something called bad luck.
Typical Russian troll comment….take your fatalism and you know what.
Live free or die.
No other state has the courage to make such a declaration.
“Live free or die”
A very nice motto, indeed. But words are cheap, and the time comes when one is forced to “put up or shut up” regarding them. Unfortunately, New Hampshire has not always lived up to those words. For example, read VIn Suprynowicz (author of “Send in the Waco Killers”) “The Ballad of Carl Drega”, if you can find it. It chronicles the virtual revocation of Drega’s property rights by NH government fiat, and the repercussions when Drega attempted to resist and (literally) stand his ground. The moral to me is that the maintenance of freedom and Liberty requires eternal vigilance from the People, in order to accountable those who have been granted power by that People. Government must never be uncritically trusted to observe its proper limits.
If NAZI’s can march in Skokie and Black Lives Matter can be painted on a street in Manhatten, then these guys should be allowed to hang their banner anywhere they want to. I don’t agree with what they said but I wil defend their right to say it.
Speaking of Socialists, the Marxist Socialists seem to be morphing into National Socialists. Perhaps their bi-social…
https://www.westernjournal.com/political-left-increasingly-parallels-nazism/
What does that have to do with the JT’s post?
“What does that have to do with the JT’s post?”
Why don’t you post that about Dennis McIntyre’s BS every single day?
A little late to hope you can get away with clutching your pearls in shock.
You don’t agree with what they said. What business is it of yours what they said? Don’t like statement, but love the form huh? It’s just words.
Concur whole-heartedly, but I do take issue with the idea we must support repugnant views… “As is often the case, defending free speech means supporting viewpoints that most of us find grotesque and hateful.” We must not – but we must support the right for such views to be expressed. A subtle distinction, perhaps, but I think an important one. Freedom of speech lets you say what you want unimpeded… but it does not require anyone to listen, or to support what you say.
Take issue with “we must support” repugnant views? There is no “must” in the courts response. Get over yourself.
And there is no “must” to agree or reject others views in the 1st Amendnment. Seems you understand that critical point. So that means you’re for censorship.
““As is often the case, defending free speech means supporting viewpoints that most of us find grotesque and hateful.””
I took that as a less than optimal way to express the conclusion that it means supporting the right to express such viewpoints. YMMV
Even the Baltimore Ravens have, an offensive line. Mahaha
Even the Baltimore Ravens have, an offensive line. Mahaha
Everyone has the right to be offended. Hurty words are not ‘hate speech.’
Viewed from one angle or another, almost all speech can be called “hate speech”, i.e. “Donald Trump is an existential threat to democracy.”. Not dangerous? It produced two near assassination. Not aimed at a group? Don’t they tell us that Donald Trump supporters are the real enemy?
But they are just words. Same can be said concerning Biden, and you would agree wholeheartedly. But include Trump’s name in that statement, you then pivot to making it a death threat.
Look at what they did to Barbecue Becky. She was in the right. She had the law on her side. SNL even ridiculed her. She was crucified. I felt sorry for her. She just wanted the law obeyed to prevent fires, but they made a race thing out of it.
While viewpoint discrimination is intolerable, what if the banner read “Kill the Jews”? Or “Muslims Suck.”
Advocating an action -Kill XXXX-is not allowed. Muslims suck is not a threat it is strictly an opinion.
What about eat the rich?
* “kill” implies threatened or actual harm, violence. I’m not sure about “suck”.
Keep something white doesn’t imply violence. White people are superior doesn’t imply harm. Harm defined as physical violence.
Interesting case again bringing to light mental, psychological battering of words. Injuries such as children and spouses endure.
Keep new Hampshire white simply designates a preference and not hate nor abuse. Keep something black is acceptable etc.
What is true in biology holds true in human behavior.
What got me about BBQ Becky, was tbat the East Coast’s Birdwatcher Bob, who also felt entitled to enforce a posted park rule against a member of another race, received sympathy. Bob, a large muscular Black man, intimidated the young weman, and threatened to harm her dog.
You want the bike people out in the open do you know who they are. Let them show the works just how horrible they are so we can make wide circles around them. It also helps law enforcement know who they are so they can’t plan worse things in the secret dark places provided by anonymity.
Certain demographics would like to see you punished for saying bad things about them (that is: the truth as you see it),
just like how dictators like Bashar al Assad and Saddam Hussein would have liked to have seen
you punished for expressing bad things about them (the truth as Iraqis and Syrians saw it).
That’s not how it should be.
“. . . Democratic leaders that hate speech is not protected under the First Amendment.” (JT)
A tyrant’s most powerful tool of oppression is nonobjective law — law that is not and cannot be defined. Such is the case with “hate speech” — an emotion-driven construct.
For the Left, in practice “hate speech” is opinions they do not like. That means that if the Left likes your speech, you enjoy 1A protection. If not, enjoy your re-education camp. (Today called mandatory “sensitivity training.”)
You nailed it!!
Sam,
Well said.
Thank you, both.
But as I wrote below, while this case does say that some hate speech is a content-based restriction and so covered by the 1A, the actual decision does not relate to the vagueness or overbreadth of racial motivation, but instead determined that the actual trespass had to be knowing.
If the state alleged that the respondents knew that they required a permit but didn’t have one the claim could be brought.
“some hate speech is a content-based restriction”
??
The court held that restricting speech because of a racial animus motivation of the speaker was a content-based restriction. That means a law restricting racially motivated hate speech must be analysed under the first amendment. Having concluded that, the court then determined that the law violated 1A because it was too vague or overbroad, if the trespass involved was not alleged to be a knowing violation.
The law was not really meant to cover speech but rather racially motivated violence or threats of violence. Among the acts made illegal are racially motivated actual or threatened trespass. The AG decided to apply it here to the trespass that occurred when the racially offensive signs were displayed on public property without a permit. The court said it couldn’t do that unless the trespassers knew they needed a permit.
The conclusion of this decision is a bit odd. It is that the civil rights law is an unconstitutional violation of free speech because it is overbroad, unless the allegation is that the trespass is “knowing.” So if the state alleged that the trespassers knew that they required a permit but didn’t have one, the claim could be brought. The concept of “actual trespass” is thus given a special meaning when used in this civil rights law.
??
“ “interfered with the rights” of other citizens.” What a topic to think about and discuss regarding the past four years of this administration.
We must defend free speech and access to information! Also, where can I submit my book-banning form?
Who is banning books?
Excellent ruling.
This also applies to J6 tresspass cases. The NH supreme court ruled that you can not selectively enforce tresspass laws to constrain speech based on motivation.
Time for the federal courts to catch up.
While this does not directly apply to the Trump gag orders, it atleast hints that they are unconstitutional.
It is going to be difficult for Justices to follow the constitution and their own precedent, But judicial gag orders except those specifically on officers of the court are unconstitutional.
Defendants are barred by law from speech that is actually criminal – true threats and incitement to violence. Any judicial constraints beyond that on defendants are unconstitutional.
Well said John. And it didn’t help that the Portsmouth Police Department allowed everyone else to fly their banners for years.
Reminds me of the case of Boston city hall, they let every crazy in Massachsuetts fly their flag, but when conservatives asked for consideration, they were rejected. A court decided in the conservatives , then suddenly city hall stop the program.
The democrats are an enemy tp the constitution! They need to have little now power!! They are gluttons for power and the moment they fear they are about to lose it is when their authoritarian nature crawls out!!
Do not be swayed and defer rights for the sake of intangible feelings.
I would agree that democrat politicians are rotten, and I believe all people who identify as democrat are at a minimum misguided but don’t be deluded into thinking democrats are the only problem; plenty of low-down, rotten republicans to choose from. The governor and both senators from my state, and the congress person from my district, for example.
Anyone who chooses to align themselves with either of the two major political parties is part of the problem with this country. The totally corrupt political process in this country has been on full display, for a while now, but not enough people are waking up to that reality. The two-party political system is what some would call “soft tyranny”. Our elections are no more free and fair than those in Venezuela.
– John Underwood
Tyler, TX
Since so many of the proponents of the view that hate speech is not protected, are democrats, I can only surmise that someone misprinted their Democrat Handbook and there has been no update in the last 30 years. I am sure that there is an occasional Republican who might say the same thing but I have not seen or heard one say that in the past either.
Of course this might be the official position of the NEA and they are teaching this incorrect statement in our classrooms as we discuss this court ruling..
The ACLU of my youth would have been the ones suing the state in this case. Where have all the civil libertarians gone?
The ACLU of my youth sued the city of Skokie, IL to allow a Nazi march. They did so citing freedom of speech. While the ACLU prevailed, the March never took place.
I fear today’s ACLU would side with the Nazis based on philosophical agreement.
The organization was once devoted to free speech. Not the case any longer.
The Illinois Nazis, as the Blues Brothers movie characterized them, really wanted to march in Marquette Park as they had done. But, per WBEZ, “In 1977, the Chicago City Council passed an ordinance requiring any demonstrator in public parks to have $250,000 in insurance in order to obtain a permit. This was widely understood as an attempt to crack down on the neo-Nazis.”
This led them to apply to msrch in various suburbs. Most of the towns just ignored them, but Skokie turned them down, and the Nazis sued.
Though they won the right to march in Skokie, the DOJ helped them get what they really wanted: to rally in Marquette Park again
They are still here. It was never about free speech. Protecting the First Amendment was a useful tactic to empower the left when it was their speech that was being prohibited. Yes, there were exceptions (Skokie) but those positions were just window dressing. The curtain has been lifted and the hammer and sickle has been revealed.
They are Jewish communists and always have been. They just pulled the mask down over the last 10 years.
And most people aren’t aware that Hitler was actually a self-hating Jewish communist. That’s been hidden for a century now.
Correct! The Dems hope, like any good communist, that if you repeat a lie often enough it becomes TRUTH and thus orthodoxy! Thank goodness we have at least “some” justices who see rights as permanent!