First Amendment concerns raised in racist banner case
May 9—Attorneys with the ACLU and ACLU of New Hampshire on Thursday submitted a friend-of-the-court brief to the New Hampshire Supreme Court in the state's appeal of its civil rights action against a white supremacist group.
The amicus brief was submitted in Formella v. Christopher Hood, raising concerns around viewpoint discrimination that both organizations warned could lead to the "chipping away" of the First Amendment rights of everyone, including Granite State communities "who are already the most marginalized," according to a news release.
The Attorney General's Office is appealing to the state Supreme Court a judge's decision to dismiss its civil rights action brought in January 2023 under the state's Civil Rights Act after members of the Nationalist Social Club 131 unfurled a banner over a Portsmouth highway on July 30, 2022, that read, "Keep New England White."
The state's complaint charged that NSC-131 and two of its members — Leo Cullinan of Manchester and Christopher Hood of Newburyport, Mass. — violated that law by trespassing on public property, motivated by hate and in violation of Portsmouth city ordinances.
Cullinan, who was 35, died in June from a drug overdose, according to media reports.
New Hampshire's civil rights law protects people from being subject to "actual or threatened physical force or violence ... or by actual or threatened damage to or trespass on property" when such conduct is "motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability."
In June, Rockingham County Superior Court Judge David Ruoff granted a defense motion to dismiss the case, ruling that the state's interpretation of the Civil Rights Act was "unconstitutionally overbroad."
The AG's office asked the court to reconsider that decision, but in an Oct. 18 order, Ruoff denied that motion.
A subsequent motion asking him again to reconsider was also denied, and prosecutors appealed to the state Supreme Court.
The ACLU and ACLU-NH warn examples of constitutionally-protected speech that could be hindered in this case are "vast," empowering the state to punish expressive activities on public property "motivated by" race, religion, or any other protected characteristic, including — for example — a Black Lives Matter protest on a public street or an abortion protest on the State House lawn.
"While the ACLU and ACLU-NH find NSC-131's mission, goals, and tactics to be abhorrent and diametrically opposed to our mission and values, we are gravely concerned that an unfavorable court decision in this case will chip away at the free speech rights of all of us," said Devon Chaffee, executive director of the ACLU-NH, in a statement. "If our state government is able to use the law to suppress viewpoints it does not like just because someone was charged with trespassing, it will enable other citizens and state officials to file similar lawsuits to target groups they don't like, including those who have already been historically marginalized."
The brief argues that "simply because speech is harmful — and it undoubtedly is here — does not mean that it can be prohibited because of its viewpoint."
"The message involved in this case is hateful and repugnant, but the First Amendment protects hateful and repugnant speech, so that government officials are not empowered to punish speech with which they disagree," said David Cole, legal director of the ACLU. "We condemn the message, but believe that free speech principles bar the Attorney General's effort to punish it absent specific targeting of an individual."
In a joint release, the ACLU and the ACLU of New Hampshire said they do not condone the speech used in this case and are committed to actively fighting white supremacy across the country.
