By DAMIEN FISHER, InDepthNH.org
CONCORD – New Hampshire Attorney General John Formella continues trying to prosecute neo-Nazi group NSC-131 for a Portsmouth “White Power” demonstration, despite constitutional roadblocks.
Formella’s office filed an appeal this week with the New Hampshire Supreme Court arguing Rockingham Superior Court Judge David Ruoff erred when he dismissed the state’s Civil Rights case citing the First Amendment right to political speech.
Ruoff dismissed the case in June, siding with lawyers for NSC-131 leaders Christopher Hood and Leo Cullinan who argued the prosecution violates their First Amendment rights. The state filed an unsuccessful motion to reconsider the dismissal, claiming Ruoff got the Civil Rights Act wrong when he ruled against the attorney general.
A second motion to reconsider followed last month, but Ruoff remained unconvinced when he ruled against the state again.
“The court is not convinced that it misapprehended any facts, or made any mistakes of law,” Ruoff wrote.
Formella’s spokesman Mike Garrity said: “The Attorney General’s Office firmly believes that the right to freedom of speech does not provide people with the license to unlawfully trespass, inflict harm upon our communities, and interfere with the rights of law-abiding citizens based on animus towards others’ race, religion, national origin, sexual orientation, gender identity, disability, or sex. Therefore, the Attorney General’s Office has chosen to appeal this case to the New Hampshire Supreme Court.”
In last month’s dismissal order, Ruoff hammered the state for prosecuting Hood, Cullinan, and NSC-131 for trespassing onto a Route 1 overpass last year in order to hang a banner over the highway that declared “Keep New England White.”
Under the state’s Civil Rights Act, criminal trespassing with the intent to promote a racist, sexist or otherwise discriminatory message is prohibited. However, the evidence shows NSC-131 leaders and members did not know they were trespassing at the time.
According to court records, Portsmouth Police officers responded to the overpass on July 1 of 2022 and informed NSC-131 members they need a permit to hang banners. At this point, the group took the banner off of the zip ties and held signs in their hands. After about 20 minutes, the group left without incident.
Ruoff ruled the state cannot prosecute the group for trespassing under the Civil Rights Act when there is no evidence they knowingly committed trespass. The state has countered ignorance of the law is not an excuse.
“(I)t is incumbent upon those exercising their rights to ensure that they are doing so consistent with the requirements of law. This standard holds regardless of whether the issue is one pertaining to speech or expressive conduct or pertaining to purchasing or carrying a firearm. At risk of creating significant perverse incentives, ignorance of publicly available laws and regulations cannot excuse unlawful conduct,” wrote Assistant Attorney General Sean Locke.
The Civil Rights Act needs to be narrowly interpreted in order to protect civil rights of everyone, Ruoff wrote. Ruoff maintains the state’s use of the Civil Rights Act in the NSC-131 case is overbroad and vague, and would result in unconstitutional prosecutions if allowed in other cases.
“(T)he broader interpretation raises a concern for arbitrary and discriminatory enforcement where regulation of the conduct and speech does not serve the goals of the Civil Rights Act, leaves similar conduct unenforced, or risks the government bringing sanctions against only those messages with which it disagrees,” Ruoff wrote.
So far, the NSC-131 “Keep New England White” banner case is the only action the New Hampshire Attorney General’s Office has taken against the neo-Nazi group.
This week, Laconia is dealing with anti-Semitic graffiti left all over the city, after a similar incident at the Laconia State School property this fall. The Attorney General’s Office is investigating that case, but no arrests have been made.
NSC-131 is considered a dangerous terrorist gang by experts who monitor white supremacist groups. NSC-131 is behind a wave of harassment and assaults throughout New England targeting minorities and members of the LGBTQ+ community.
The group’s founder, Hood, has ties to numerous violent extremists in the white supremacist underworld. Cullinan had been the New Hampshire leader for NSC-131 until his drug overdose death this year.
In May, NSC-131 member Kyle Morris, 23, of Salem, was sentenced to federal prison for owning machine guns. Morris allegedly planned violent attacks on minorities, including a suicidal mass shooting and a terror attack that would have ended with blowing up the Massachusetts State House.