Jul 142015

Contact:                Gilles Bissonnette, Esq., ACLU-NH Legal Director, 603-224-5591, gilles@aclu-nh.org (The release below can be attributed to Mr. Bissonnette)

Concord, NH – Today, the ACLU of New Hampshire (“ACLU-NH”) filed a federal civil rights lawsuit on behalf of its client Jeffrey Clay, who was arrested on February 3, 2015 during an Alton Board of Selectmen meeting simply for engaging in political, non-disruptive speech on matters of public concern.  On June 9, 2015, in a victory for First Amendment rights, the Laconia Circuit Court dismissed the criminal charge for disorderly conduct against Mr. Clay, calling Alton’s actions “pure censorship” in violation of the First Amendment.  In the federal civil rights lawsuit, Mr. Clay is being represented by Gilles Bissonnette, the Legal Director of the ACLU-NH, and cooperating attorney Jared Bedrick of Bedrick Law Offices.

During the February 3 Board meeting, Mr. Clay was given the opportunity to speak on any issue for 5 minutes as part of the Board’s policy of “provid[ing] the Board with an opportunity to receive directly from citizens concerns, desires, or hopes they may have for the community.”  During his remarks, Mr. Clay asked all Board members to resign for their “poor actions as selectmen,” “poor decisions,” and “continued violations of the citizens’ rights here in Alton.”  His remarks referenced, in part, his belief that the Board has violated New Hampshire’s Right-to-Know law by holding “workshop” sessions at odd hours of the day and making decisions during them that were not transparent.  He did not raise his voice or use any profanities.  His speech was not disruptive.

Approximately 40 seconds into Mr. Clay’s speech, one Board member interrupted Mr. Clay, called the remarks “character assassination,” and requested a “point of order.”  The Board Chairman recognized the request and ultimately proposed a “point of order” to “clos[e] down public input” because of the “libelous” and “defamatory statements made by Mr. Clay.”  The 5-member Board then, with no dissenters, immediately approved the “point of order” closing down public input.  All of this occurred within the first 2 minutes of Mr. Clay’s allotted time.  Because Mr. Clay was speaking peacefully on matters of public concern within his 5 minutes of allotted time, he continued speaking.  As a result, 4 minutes into his remarks, he was arrested by the Alton Chief of Police.  A video of this incident can be found at http://youtu.be/RYnSJZTFghY.

On February 23, 2015, the State filed two complaints against Mr. Clay alleging disorderly conduct.  Each was charged as a class B misdemeanor, which is punishable by a fine of up to $1,200.  On March 10, 2015, the ACLU-NH  wrote the Town of Alton on Mr. Clay’s behalf explaining that the Town, in suppressing Mr. Clay’s peaceful political speech, engaged in impermissible censorship in violation of the First Amendment.   Despite the ACLU-NH’s letter, the Town of Alton remarkably continued to prosecute Mr. Clay for one count of disorderly conduct, which was premised on the notion that he refused to obey an order from the Alton Chief of Police to stop talking during the meeting.

On June 9, 2015, the Laconia Circuit Court dismissed the criminal charge.  As the Court explained, Mr. Clay’s speech was protected, and Alton’s actions in silencing him were “nothing less than censorship of [Mr. Clay’s] criticisms given at a time and place designated by the Board itself for public input.”  The Court later reiterated this point, explaining that “[t]he action taken against [Mr. Clay], who was complying with the very protocols of the Board and not committing any of the prohibited indicators as defined in the protocols, was pure censorship.”  The Court noted that there was no evidence that Mr. Clay crossed the line into unprotected speech, explaining that “[t]he State pointed to no offense having been committed by [Mr. Clay], nor to any offense by [Mr. Clay] which was to be imminently committed by [him].”  Thus, the Court concluded that “[t]he arrest of [Mr. Clay] is … a violation of [Mr. Clay’s] 1st Amendment right of Free Speech.

Sadly, these types of free speech violations still occur in 2015.  In a free society, governmental officials are required to tolerate harsh criticism and even a demeaning attitude towards them—including viewpoints that can feel like “character assassination”—and cannot discriminate based on these critical viewpoints.  As the U.S. Supreme Court has held, “[a]s a general matter, … in public debate, our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”  Thus, speech directed to and about the government is singled out for protection because speech—including opinions about how well or badly officials carry out their duties—lies at the very heart of the First Amendment.

Just as concerning, the Town’s actions in this case of not only suppressing Mr. Clay’s speech, but also prosecuting him in the face of clearly established law will chill others from engaging in future speech that is critical of the Board.  As the Laconia Circuit Court already recognized, the Town’s action were not only wrong, but also violated this country’s sacred free speech rights guaranteed by the Constitution.

 July 14, 2015  Tagged with: