One of the most fundamental principles under the First Amendment is that viewpoint discrimination is both unconstitutional and ignores this nation’s deep history of allowing alternative and dissenting perspectives to be conveyed freely and without fear of prosecution. The Town of Alton apparently did not get the memo.
On February 3, 2015, Jeffrey Clay was arrested during an Alton Board of Selectmen meeting simply for engaging in political, non-disruptive speech on matters of public concern.
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's 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. 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 is being charged as a class B misdemeanor, which is punishable by a fine of up to $1,200.
On March 10, 2015, the ACLU 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 viewpoint discrimination in violation of the First Amendment. As a result, Mr. Clay's arrest was unlawful, and all charges should be dismissed.
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 suppressing Mr. Clay’s speech will chill others from engaging in future speech that is critical of the Board.
Our hope is that Alton will brush up on these sacred free speech principles that are necessary for a functioning democracy.