White nationalists hung a banner on a highway overpass. When asked to remove it for failing to have a permit, they did. The State, looking for something – I speculate on that more here – charged them with a civil rights violation that I concluded would fail miserably. It did.
Not only did the State fail to make a compelling civil rights case, but it also failed to secure a trespassing charge, as the defendant’s motion to dismiss was granted.
You can wade through the details of the full decision here. There are some interesting points about trespassing, the overbreadth doctrine, how the State chose to charge the defendants, and how the judge wrangled the related law and statute.
At the end of the day, this might be the most crucial part of the decision (IMO).
The State’s construction does not stop at messages motivated by race. Presumably, the State could bring a civil action against a person whose presence on public property is motivated by any other protected characteristic. For example, the State could, under this theory, bring a civil action against a person who walks on public sidewalks, knocking on doors to spread the message of their religion. The State could likewise regulate a person who drives a car on a public highway to a job working with people with disabilities. The State could prohibit abortion protests on the Statehouse lawn. “Such a law that confers on police a virtually unrestrained power to arrest and charge persons with a violation of the resolution is unconstitutional because the opportunity for abuse, especially where a statute has received a virtually open-ended interpretation, is self-evident.” (citations removed).
How the State of New Hampshire tried to invoke a violation of the Civil Rights Act opened the door to wide-ranging abuses of power, which was a point from my remarks on this case in early June.
Disregarding how offensive we may find white nationalists, neo-nazis, anti-semites, BLM, Antifa, or anyone else willing to use racism, intimidation, or violence to advance an agenda in the absence of incitement (an expression directing immediate acts of violence – a challenging standard to meet), there’s no there there.
You can’t have a civil rights law that infringes on the First Amendment, nor can you pretend it capable of such a thing when the legislature never intended it.* What are you after, and why do you think you can get it? I’m opposed to anti-semitism and race-hating white purity movements but not at the expense of free speech.
Is this some veiled effort to get a shadow of a penumbra of a hate-speech ruling squeezed out of 354B:1, and if so, to what end?
I think this was a fishing expedition searching for court precedent that would allow the State to use civil rights law to pick and choose opportunities to chill the right to free speech. [A] virtually unrestrained power to arrest and charge persons with a violation of the resolution is unconstitutional because the opportunity for abuse, especially where a statute has received a virtually open-ended interpretation…”
It is fair to ask why.