The Volokh Conspiracy
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N.H. Court Rejects Attempt to Impose Hate Crime Liability on Neo-Nazis for Hanging "Keep New England White" Sign on Overpass
The right result, I think, but I don't think the court's reasoning is quite right.
From yesterday's N.H. Supreme Court decision in Attorney General v. Hood:
[According to the State's complaints,] a group of approximately ten people associated with NSC [National Socialist Club]-131, an unincorporated association that describes itself, in part, as a "pro-white, street-oriented fraternity dedicated to raising authentic resistance to the enemies of [its] people in the New England area," gathered on a highway overpass in Portsmouth. The group hung banners, one of which read "KEEP NEW ENGLAND WHITE," from the overpass.
Shortly thereafter, officers from the Portsmouth Police Department responded to the scene and informed Hood, whom they identified as the group's leader, that the group was violating a Portsmouth municipal ordinance that prohibited hanging banners from the overpass without a permit. Hood then instructed his associates to remove the banners from the overpass, although some individuals continued to display the banners by hand. The officers interacted with the group on the overpass for approximately twenty to twenty-five minutes before the group departed. NSC-131 subsequently took credit for the episode on social media.
The State filed complaints against the defendants seeking civil penalties and injunctive relief for their alleged violation of RSA 354-B:1. The State alleged that Hood and Cullinan violated and/or conspired to violate the Act when they led or aided a group of individuals to trespass upon the property of the State of New Hampshire and the City of Portsmouth by hanging banners reading "Keep New England White" from the overpass without a permit because their conduct was "motivated by race and interfered with the lawful activities of others." The State alleged that NSC-131 violated the Act when its members developed and executed a plan to commit the aforementioned act….
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 court concluded that the state's interpretation of the Act as applying to defendants violated 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 following example used by the trial court illustrates this point.
For example, a person's disability rights protest at Veteran's Park in Manchester continuing after 11 p.m. may violate the [ordinance imposing a curfew] at issue in [State v. Bailey (N.H. 2014)], even if the protestor held a good faith belief that the regulation began at midnight or that there was no such curfew. Under the broader construction of the Civil Rights Act, the protestor will have violated [the Act] through their unprivileged presence on public property motivated by 'disability,' provided the protestor sufficiently 'interferes' with the lawful rights of others in doing so. Likewise, if the person were 'motivated by … sex' to be in Veteran's Park after 11 p.m. for reasons unrelated to any political protest, the person similarly will have violated the Civil Rights Act even if they were unaware of the curfew, provided there is a sufficient showing of 'interference.'
Although regulation of the defendants' banners may serve the compelling government interests of preventing interference or attempted interference with the rights secured by the Act, this example demonstrates that it is not narrowly tailored to do so. The overbreadth of the State's construction of the Act creates an unacceptable risk of a chill on speech protected by … our State Constitution….
Our conclusion is supported by considering the vagueness concerns raised by the trial court. As the trial court explained, "reading the trespass provision to include good faith, negligent trespass would fail to provide people of ordinary intelligence a reasonable opportunity to understand what conduct the Civil Rights Act prohibits." Furthermore, "[t]he absence of a 'knowing' mental state would charge the public with maintaining an actual, encyclopedic knowledge of a potentially limitless number of existing and future regulations governing all types of public fora on all government property before engaging in otherwise protected speech." We agree that such an expectation of citizens who enter public property is not reasonable.
The court held that the statute should instead be interpreted more narrowly:
We hold that, to state a claim for a violation of the Act predicated upon actual trespass on property, the State must establish that the actor, with knowledge that he or she is not licensed or privileged to do so, enters land in the possession of another or causes a thing or a third person to do so, and that the trespass was "motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability." …
And the court held that, as so interpreted, the law didn't cover defendants:
The complaint against Hood alleged that he was not wearing a mask, "stepped forward and spoke with the officers," and identified himself as the group's leader. NSC-131 allegedly "took credit for the display of the banners" on its social media profiles. Furthermore, the group removed the banners from the overpass fence when they were apprised that they were trespassing on public property, and "[s]ome of [NSC-131's] members stood on the overpass and continued to display the banners by hand." Even when construing all reasonable inferences in the light most favorable to the State, we are not persuaded that the complaints sufficiently allege that the defendants knowingly trespassed.
This is an interesting analysis, but I'm not sure how it deals with the court's content discrimination objection: After all, under this analysis, the "disability rights protest … continuing after 11 p.m." that violates the park's nighttime closing rules may violate Rev. Stats. 354-B:1, so long as the protesters know that they are violating the rules, because it was "motivated by disability"—but, say, an anti-COVID-lockdown protest or environmentalist protest wouldn't be covered, because it wasn't "motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability." What compelling interest would support that sort of content discrimination (and likely viewpoint discrimination)?
And beyond this, it's hard to see how even a knowingly ordinance-violating hanging of the banners here would interfere with persons' "right to engage in lawful activities and to exercise and enjoy [their] rights … without being subject to … trespass on property when such … conduct is motivated by race, color, [etc.]" However upsetting "Keep New England White" might have been to non-white residents, and even if the hanging of the banner was a trespass, they weren't made "subject to" the trespass in the normal sense of the phrase, I think: If you trespass on my property, that might make me "subject to" the trespass, but not if you trespass on the city's property.
Now the statute might make more sense, and might be constitutional, if it were interpreted to include the italicized added text below:
All persons 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 or any other person or by actual or threatened damage to or trespass on property when such actual or threatened conduct is motivated by those persons' race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability.
This would basically be a law that forbids force, violence, or trespass targeting people because of those people's attributes, rather than because of the topic of a trespasser's speech (as in the disability rights protest). The Court has generally upheld such laws in Wisconsin v. Mitchell (1993), on the theory that they target not speech but the decision to select a crime victim based on the victim's attribute (much as, say, employment or public accommodations laws target decisions to treat someone worse because of their attributes).
If the law were read this way, it wouldn't apply to a disability rights protest that trespasses in a city park, whether or not the protesters knew they were trespassing, because they weren't trespassing in a way that was motivated by the victim's (the city's) disability. It would likewise not apply to a racist protest that trespasses on a city overpass—even knowingly trespasses—because the trespassers wouldn't be motivated by the victim's (the city's) race. On the other hand, the law would apply to someone protesting on a person's front lawn, or hanging a sign on the person's property, if the person was selected because he was disabled or black.
Alternatively, if the court believes that it can't read new words into a statute this way, and it thinks that the law therefore would cover knowingly trespassing disability rights protests in a city park—but wouldn't cover knowingly trespassing protests on other topics—then the law would have to be struck down as unconstitutional. But it seems to me that reading a knowing trespass requirement into the law just doesn't solve the First Amendment problem.
Bradford R. Stanton and William E. Gens (Gens & Stanton, P.C.) represent defendants. The ACLU of New Hampshire also filed a friend-of-the-court brief in support of defendants, which I think is generally consistent with the views I lay out above; an excerpt:
[The state's] interpretation of the Act would allow law enforcement officials to impose heightened "bias-motivated offense" penalties on anyone who trespasses while engaged in speech about race, religion, gender, or any other protected characteristic. In practice, that would mean that law enforcement officials have the power to impose heightened penalties any time someone commits even an inadvertent trespass while engaged in speech that the officials find offensive—whether the speech is by Black Lives Matter activists condemning racism by white people, pro-Palestine activists protesting the war in Gaza, or pro-Israel proponents counterprotesting. Neither the First Amendment nor the Act's legislative history support such a dramatic expansion of the Act's scope….
[T]his Court should hold RSA 354-B:1 does not apply to trespasses on public property motivated by the desire to express a message related to protected characteristics where there is no evidence of discriminatory targeting. Alternatively, this Court should hold that RSA 354-B:1 is unconstitutional applied to the facts alleged in the Complaints.
