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).
I’m going to go off on a tangent, and report on the state of California, a Democrat Supermajority.
My husband was down south working in Pacific Palisades when the fire broke out, and he and his employees got out of there in time. His friend, who was working at another location, was not so lucky. He was trapped on a narrow road, blocked when people in front panicked and abandoned their cars, trapping everyone behind them. Cops went down the line and told everyone to leave their cars and make a run for it. He made it out on foot, but his work van with his tools burned.
Although the 5 fires were all well to the south of us, we had our power cut off for days. Luckily, we have a gas generator that we could run during the day, but we shut it off at night. We live in an area without cell service, so once the generator shut off, we had no WiFi, which we’d relied upon for texts and emergency alerts. Throughout the day, we kept getting false alarms to evacuate immediately. Once the generator shut off, I lay awake all night, eyes wide open like that character from “Clockwork Orange,” wondering if any new fires cropped up near our home.
The following are ways in which Democrat policies either directly contributed to the spread of the fires, the inability to evacuate, or made people more helpless:
1. The Santa Ynez Reservoir was drained last February for repairs to a torn cover. I’ve been told that repairs had still not begun. The head of the LA Department of Water and Power lied when he said he had no idea how long the reservoir was out of commission. He knew. He just didn’t want to tell an angry public how long. Firefighters RAN OUT OF WATER in Pacific Palisades, and had to helplessly just watch as entire communities were destroyed. There are videos of people throwing bottled water on house fires.
2. Even though we have had some lucky rain years in this drought state, we still don’t have significant water saved, as millions of gallons are released annually in the effort to save the Delta smelt. I’ve said before, but I suspect that the Delta Smelt only congregated there due to human activity, because there shouldn’t be massive rainwater runoff. In a chaparral ecosystem, most of the rain soaks into the ground, recharging underground aquifers, and held in place.
3. The Los Angeles Fire Department budget was cut by over $17 million. LA mayor Karen Bass wanted to cut that budget by over $60 million more. If she had succeeded, there would have been 16 fewer fire stations to respond to that fire. Meanwhile, Los Angeles County has a budget of over a billion dollars for the homeless, annually, yet it has experienced only increasing rates of homelessness.
4. Instead of hiring practices that look for the best candidates for firefighters, who can actually put out fires, the emphasis for decades has been on DEI. Here is a video from Deputy Chief Kristine Larson, a lesbian, and head of equity and human rights bureau of the LAFD, with a salary of $400,000, saying in response to concerns that she couldn’t carry someone’s husband out of a burning building, that if she had to do that, then he put himself there. https://www.dailymail.co.uk/news/article-14276655/Los-Angeles-Fire-Department-Kristine-Larson-diversity-fire-victims.html Standards should have never been lowered for LAFD. For decades, white men were told to wait up to a decade to try to get into LAFD, while minority women could apply and get in within days. The only standard to be accepted to the LAFD should be the physical and mental capacity to do an outstanding job as a firefighter. Ilona Maher could easily pass the LAFD physical test, and she could carry me, and my husband, at the same time, out of a burning building. Women who can pass the very demanding physical fitness tests, should be accepted. No standards should be lowered, and it is frankly immaterial what color skin they have, or whom they have sex with, aside from bunking logistics.
5. Democrat Governor Gavin Newsom lied about fire prevention efforts. https://www.npr.org/2021/06/25/1010382535/gavin-newsom-misled-public-about-wildfire-prevention-work-report-says
6. Gov Newsom has banned gas generators, starting in 2028, if I recall correctly. Without gas generators, during the regular power outages, those of us on a well won’t have water. No water pump, no water. That means no water for fire crews, either, as once that large water tank is drained, they can’t access the underground water resource.
7. Go Newsom has mandated that higher and higher percentages of vehicles be EVs in coming years. The power is regularly cut in CA, especially in rural areas, due to high wind fire hazards. No power, means no way to charge an EV, which means no escape from wildfires. There is a video of a man in a truck who found a woman sobbing on the side of the road in the middle of the fire, crying that she couldn’t start her car and escape with her 4 dogs, because it’s a hybrid.
8. Sierra Club sued to prevent preventive burns.
9. Environmental regulations ended the practice of bulldozing fire breaks in the hills. Decades ago, the hills were criss crossed with fire breaks. That’s gone, and now fires just rip through the hills. Deadwood isn’t cleared from forests. They haven’t tried regenerative agriculture to graze off some of that highly flammable invasive non native grasses that stuff the chaparral with tinder.
California has been a super majority for decades. Republicans have zero to do with California policy. Every problem there is with CA public education, the homeless crisis, the cost of living, high fuel prices, high cost of shipped goods due to CARB restrictions on vehicles and that high fuel price, the water rationing while millions of gallons are fruitlessly dumped for the Delta Smelt, which hasn’t increased in population, and the massive, fires.
Democrat rule is an unmitigated disaster.
Karen S,
Thank you for your boots on the ground reporting. We all know how the Democrat ran, driven into the ground the failed state of CA is. Stay safe!
Thanks, UpstateFarmer.
I live in an area without cell service, so when we turn the generator off, we don’t get texts, or emergency alerts, and we can’t check the Watch Duty fire app. We kept getting false alarm emergency broadcast texts, telling us to evacuate now. One day, we got them all day, but the fires were nowhere near us. It’s one more infrastructure that was mismanaged. After I turned off the generator, I just lay there in bed, eyes wide open, like that character in “A Clockwork Orange,” unable to sleep, wondering if another arsonist would get ideas near our community.
The little market in our town lost all chilled items due to the power outage. The shelves were completely bare of meat, eggs, dairy, and frozen food. It was dry goods only, and produce. All that food went to waste. It was surreal, but we are indescribably lucky, so far, to be far away from the fires.
Another example of catastrophic Democrat policies are the road diets, which killed people in the Paradise Fire. They narrowed their roads by 2 lanes, to slow traffic down for “safety”, despite being warned it would hinder evacuations during fires. People died because they couldn’t get home to loved ones, or they couldn’t make it out in time.
The next big story will be the exodus of fire insurance from the state. After the Paradise Fire, many insurance companies left the state of CA. The payouts were just too expensive. Democrat policies have also sharply increased construction costs, which makes it far more expensive to rebuild. Already, people in some areas were unable to insure their homes, and had to rely on the California Fair Plan. That plan costs over $12,000 a year in some high fire areas. Officials warned almost a year ago that the CA Fair Plan was already running out of money, despite sickeningly high premiums, and all it would take is one major disaster to make the plan bankrupt. Well, that disaster has happened.
https://www.cbsnews.com/sanfrancisco/news/california-fair-plan-insurer-of-last-resort-warns-major-disaster-could-wipe-out-funds/
Rebuilding will take years, again thanks to Democrat Policies. Malibu has a reclamation rule in some parts, that if Mother Nature destroys your home, you won’t be allowed to rebuild. The goal is to replace the homes with open space. Permits can take years. The construction costs have skyrocketed. Then there are the surveys and regulations. In order for one neighbor to get insurance, she was required to plant trees, but the fire department ordered her to cut the trees, because they would be too close to the structure. Regulations duel with each other, and no one wins.
It’s official. Democrats turned wealthy California into a third world country. We no longer have reliable electricity or water. Cars are mandated that won’t start during power outages, such as during fires. Roads are blocked during evacuations, even preventing parents from rescuing their children. The power grid is unstable, yet Newsom demands more electric vehicles. We ran out of water during a fire, yet millions of gallons of water will be released again this year for the Delta Smelt, despite the species showing no improvements after years of this.
We are in dystopia.
The very Democrats who voted for politicians who kept destroying the state, are moving, and they’re coming to a state near you. They’ll come in sufficient numbers to affect elections, and most of them will keep voting for the exact same party and policies that caused them to flee California. They won’t learn.
KS: Thank you for a great summary of how D policies made a destructive event a catastrophe. While Nero merely fiddled, California’s leaders actively destroyed.
I am sorry that you are suffering under their revolting policies.
Sam, I’ll second that. I can hardly stand to watch the destruction taking place. California, despite what the politicians have done to it is, or at least was, a beautiful place to live. Now it’s most major city looks like Tokyo after the B-29 fire bombing of March 1945. Governmental incompetence, corruption, and maleficence, can have just as much of a destructive outcome as anything war has imaginable. Remember that next time you vote!
Hard to believe all the uproar over someone saying people like Elon Musk are dysfunctional. Being the richest man on Earth, he is hardly dysfunctional. And the fact that he was born an African-American is hardly any reason to smear him. Never-the-less the Marxist-Socialists continue to yelp how terrible this African-American is for standing up for free speech. So racist.
Biden keeps saying he would’ve beaten Trump. If that is not delusional enough, he now says Kamala would have beaten Trump.
Wait, what?