The New Hampshire Attorney General’s office and this is just a guess, appears to be using the recent rise in left-wing anti-semitism to push for a court ruling that allows the State to use civil rights law to silence speech it decides at any given moment is offensive.
As background, some White Nationalists displayed a banner on a highway overpass (Keep New England White) and were arrested for trespassing. The State also charged them with violating New Hampshire Civil Rights law. A judge saw it that way and dismissed it over the summer, noting that the State’s interpretation of the Civil Rights Law in this context would allow it to bring civil actions against a wide range of protected activity, gutting free speech in the process. The judge even tossed out the trespassing charges based on infringements of First Amendment rights.
It wasn’t a great day for tyranny. Still, tyranny never sleeps, or not for long, so after licking its wounds for five months, the Attorney General’s office has appealed to the State’s highest Court for a more favorable verdict (article may be paywalled).
In a statement Thursday, Attorney General John Formella said his agency “firmly believes that the right to freedom of speech does not provide people with the license to unlawfully trespass, inflict harm upon our communities, and interfere with the rights of law-abiding citizens based on animus towards others’ race, religion, national origin, sexual orientation, gender identity, disability, or sex.”
What a contrived pile of misleading tripe. The First Amendment never gave anyone the right to trespass unlawfully, but it does protect free speech from arbitrary government declarations that make speech in public places an act of trespass. Likewise, the First Amendment protects speech from efforts by the NH AG to turn New Hampshire’s Civil Rights Law into a social justice cudgel to wield without regard to any other protected right.
Is the AG’s Office destined to trip over the same landmine that got the case dismissed in the first place?
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).
And so they appealed.
A favorable ruling (for the AG) at the State’s High Court would affirm that the government can restrict speech in public places to a degree that would create inequity. Public places could be further cordoned off to silence speakers with fees and fines that make speech an increasingly expensive commodity you have to buy. You can speak, but only if you can afford the permit or the fines for speaking without one.
The State would also – as I noted here – be violating the very law they claim as justification for the original charges and their appeal.
If the AG insists on proceeding with this “critical case,” he is violating the statute he claims justifies the prosecution. The assholes with the “Keep New England White sign “… have the right to engage in lawful activities and to exercise and enjoy the rights secured by the United States and New Hampshire Constitutions and the laws of the United States and New Hampshire without being subject to actual or threatened physical force or violence against them,” by the government.
The Attorney General’s Office has insisted that the conduct (holding an offensive banner up on an overpass) was unlawful despite the risk that it could give the state “a virtually open-ended interpretation, [and] unrestrained power to arrest and charge persons with a violation.”
That appears to be the goal.
We already have laws to protect citizens from trespass and harm. This would empower the State to prosecute a presumption of future harm based on non-violent expression. To arrest, detain, or prosecute people based on their perception or preference concerning the subject or the speaker.
Thought crime.
While you are asking yourself why, don’t forget that it is the AG of a Republican governor pursuing this abuse of power at what appears to be a politically opportune moment. The rise in outrage over comments about Jews and Israel. Are they hoping the public or the Court will be swayed to allow this tyranny?
Let’s hope not.
And while we’re at it, perhaps former AG Kelly Ayotte and Senator Chuck Morse can give us their thoughts. They are both running for governor, as are Joyce Craig and Cindi Warmington on the Democrat side. What do you think about this matter? Which side would you choose?
Free Speech or Thought Crimes?