Newfields, NH Ban on Residential Protests is Probably Illegal and Unconstitutional - Granite Grok

Newfields, NH Ban on Residential Protests is Probably Illegal and Unconstitutional

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UPDATED and BUMPED: See Update II, below

Steve pointed out that the Town of Newfields decided to create its own sense of a new Protected Class. They have outlawed protests in front of any home or dwelling (yeah, I know, a rather “broad” class but stick with me here).

Related: Newfields, NH Quietly Passes Ordinance Prohibiting Political Protests Outside Gov. Chris Sununu’s Home

A general ordinance meant to protect His Excellency, Governor Baby Huey Chris Sununu.

Well, that seems to be an open and shut case, doesn’t it, except that commenter, Liberal Conservative “triggered” me. No, not in the same as”triggering” an SJW.

We aren’t a home rule state (we are a “Dillon’s Rule State) which means that a subdivision of the State – pretty much anything that has a budget – can only do that for which there is an authorizing NH RSA.  The Newfields Selectmen are depending on RSA 31:39-d, or so it seems, and pinning their hopes on folks will continuing to do a whole lotta hootin’ and hollerin.’

Read the ACTUAL RSA they cite (as well as asking our in-house lawyers about this).





Power to Make Bylaws

Section 31:39

Read’em and weep, nimrods:

31:39 Purpose and Penalties. –

I. Towns may make bylaws for:
(a) The care, protection, preservation and use of the public cemeteries, parks, commons, libraries and other public institutions of the town;
(b) The prevention of the going at large of horses and other domestic animals in any public place in the town;
(c) The observance of Memorial Day, whereby interference with and disturbance of the exercises for such observance, by processions, sports, games or other holiday exercises, may be prohibited;
(d) Regulation of the use of mufflers upon boats and vessels propelled by gasoline, oil or naphtha and operating upon the waters within the town limits;
(e) The kindling, guarding and safekeeping of fires, and for removing all combustible materials from any building or place, as the safety of property in the town may require;
(f) The collection, removal and destruction of garbage, snow and other waste materials;
(g) Regulating the operation of vehicles, except railroads as common carriers, upon their streets;
(h) Regulating the conduct of public dances;
(i) Regulating the conduct of roller skating rinks;
(j) Regulating the sanitary conditions of restaurants within town limits in accordance with the provisions of RSA 147:1;
(k) Issuing a license for the operation of a restaurant and other food serving establishments within the town limits and charging a reasonable fee for same;
(l) Making and ordering their prudential affairs;
(m) Issuing permits for tattooing facilities and charging a fee for the permit; and
(n) Regulating noise.
(o) Requiring the reporting of contributions to, and expenditures by, any candidate or political committee made for the purpose of influencing the election of any candidate for local elective office, or any person or committee for the purpose of influencing the vote on any local ballot or referendum question.
(p) Regulating the retail display and accessibility of martial arts weapons including throwing stars, throwing darts, nunchaku, blow guns, or any other objects designed for use in the martial arts that are capable of being used as lethal or dangerous weapons.
II. Towns may appoint all such officers as may be necessary to carry the bylaws into effect.
III. Towns may enforce the observance of the bylaws by suitable penalties not exceeding $1,000 for each offense to enure to such uses as the town may direct.

So, which one of these apply? None of them if you read and think carefully. They are quoting Clause-d which regulates boats.

Not knowing his address other than in Newfields, I am going to guess that water access is not the only way his home can be accessed (e.g., and the “country store” is on Main Street). So, Clause-d is just out of the question (unless someone is trailering their boat and running the engine which is a rather stupid idea in the first place as an instrument of protest).

In other words, NONE of them apply except for possibly clause N (still waiting to hear back from our lawyers so there may well be an update on my thinking here).

Please read them all as I am not a lawyer and don’t try to be on here on the ‘Grok but I do think my reading comprehension is a bit above average (given the product that schools are punching out now and if I slow down and don’t get distracted).

Perhaps clause H, too, if you are dancing in the street because of political delirium but let’s hold off on that for a bit. And as long as you aren’t giving money on your “in front of Sununu’s house” protest, Clause-O doesn’t apply either.

Nope, they are counting on you being LOUD. That they can regulate – and they’ve made it clear that the Police Chief is rarin’ to have a go at it.

So, my take on this is:

  • if you stay on public property, and
  • walk/circle/not blocking the store (as alleged) et al QUIETLY (but still carrying signs and the like; just whisper among yourselves and no noise makers)

…you’d still be legal.

But again, I’m no lawyer. But if that is the only RSA that the Newfields Selectmen are counting on, it’s seemingly pretty thin gruel to base their anti-protest, anti-free speech, anti-seeking redress ordinance.

UPDATE – from one of our lawyers:

If it says what it seems to say, I do not think the ordinance would pass constitutional muster.

But someone would have to be arrested for violating the ordinance and challenge it in court unless someone (with standing) wants to try to convince a judge to declare it unconstitutional and/or issue an injunction against its enforcement.

UPDATE II – From the other lawyer:

Skip, the Town is probably relying on RSA 31:39, which is a statute that enumerates various “police powers” delegated by the State to towns. I think I recall that the U.S. Supreme Court has said that it does not violate the 1st Amendment to prohibit a protest outside a residence.

Follow up – just read your post, Skip. It does appear to be quite the gossamer thread from RSA 31:39 to the ordinance … that is the better argument, I think, than the constitutional argument (see prior email). I believe towns have the power to require permits for 5K races. If there is such a statute, it may allow the town to require a permit for the protests and limit the number of protesters,and set a time-limit on the protesting … but this ordinance obviously is something different than that.