UPDATED: Attorney General John Formella issued the following statement: “I am disappointed that the ACLU has chosen to support an organized hate group such as NSC-131. Hate has no place in New Hampshire, and we will not sit idly by while organized hate groups like NSC-131 commit illegal acts for the purpose of harassing and even terrorizing our citizens. As my Office articulated in its opening brief to the New Hampshire Supreme Court, the right to engage in speech does not permit people to commit unlawful acts, such as the trespass that NSC-131 has been accused of committing. Further, it is a violation of the New Hampshire Civil Rights Act to commit a trespass motivated by race. Such unlawful acts send a message to marginalized communities that New Hampshire does not welcome them. Any failure to enforce our Civil Rights Act in the face of these unlawful acts would send a message to marginalized communities that New Hampshire law enforcement will not take the necessary steps to protect them. As we have maintained since we initiated this case, our construction of the Civil Rights Act is consistent with the free speech provisions of the state and federal constitutions, and we carefully consider any potential action that may appear to impact those rights. We will continue our efforts to protect all of New Hampshire’s citizens from hate and discrimination by strongly enforcing our Civil Rights Act.”
CONCORD, N.H. – The ACLU and ACLU of New Hampshire today submitted a friend-of-the-court brief to the New Hampshire Supreme Court in Formella v. Christopher Hood, raising concerns around viewpoint discrimination that, if applied in this case, could lead to the chipping away of the First Amendment rights of everyone, including Granite State communities who are already the most marginalized.
In January 2023, the New Hampshire Attorney General’s Office brought three civil actions under New Hampshire’s Civil Rights Act against a group of protestors associated with the white supremacist group NSC-131, after they allegedly entered a public highway overpass and affixed a banner reading “Keep New England White” to a fence.
The case was dismissed and twice denied reconsideration by the New Hampshire Superior Court, the first court to hear the case, which concluded that the Attorney General Office’s legal reasoning in the case would render the statute unconstitutionally overbroad and suppress speech. The Attorney General’s Office filed a notice of appeal to the New Hampshire Supreme Court in November 2023.
The examples of constitutionally-protected speech that could be hindered in this case are vast. According to the Superior Court, the Attorney General Office’s interpretation of the statute would empower the state to punish any number of expressive activities on public property that are abstractly “motivated by” race, religion, or any other protected characteristic, including, for example, a Black Lives Matter protest on a public street, a demonstration to “save Chinatown,” an abortion protest on the State House lawn, or the proselytization of a particular religion.
“While the ACLU and ACLU-NH find NSC-131’s mission, goals, and tactics to be abhorrent and diametrically opposed to our mission and values, we are gravely concerned that an unfavorable court decision in this case will chip away at the free speech rights of all of us,” said Devon Chaffee, executive director of the ACLU of New Hampshire. “If our state government is able to use the law to suppress viewpoints it does not like just because someone was charged with trespassing, it will enable other citizens and state officials to file similar lawsuits to target groups they don’t like, including those who have already been historically marginalized.”
According to the brief, which addresses the narrow and unique facts of this case, “simply because speech is harmful–and it undoubtedly is here–does not mean that it can be prohibited because of its viewpoint.”
“The message involved in this case is hateful and repugnant. But the First Amendment protects hateful and repugnant speech, so that government officials are not empowered to punish speech with which they disagree,” said David Cole, legal director of the ACLU. “We condemn the message, but believe that free speech principles bar the Attorney General’s effort to punish it absent specific targeting of an individual.”
The potential impact of allowing the government to engage in viewpoint discrimination in this case could suppress the perspectives of historically marginalized communities in future instances – and we have seen this in New Hampshire. Through a 2021 change in the law, New Hampshire’s “Law Against Discrimination” was amended in an effort to censor the viewpoints of authors of color in schools–a clear part of the national effort to weaponize anti-discrimination laws to diminish these viewpoints in secondary and higher education. The ACLU of New Hampshire, alongside educators and other advocates, is challenging that classroom censorship law in court.
There are additional national efforts, in violation of the First Amendment, to suppress instruction on diversity, equity, and inclusion in workplaces across the country. For example, the Eleventh Circuit Court of Appeals recently stopped these viewpoint-discriminatory efforts in Florida.
The ACLU and the ACLU of New Hampshire do not condone the speech used in this case and are committed to actively fighting white supremacy across the country. The organizations are proud of the work they do to counter racism and white supremacy, and collaborate closely alongside other organizations in the state and country who do this difficult and important work.
This press release and the brief can be viewed here: https://www.aclu-nh.org/en/press-releases/aclu-nh-and-aclu-submit-amicus-brief-nh-supreme-court-viewpoint-discrimination.