N.H. Court Rejects Attempt to Impose Hate Crime Liability on Neo-Nazis for Hanging “Keep New England White” Sign on Overpass
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 underlyi
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