Understanding Freedom of Speech

Where does our freedom of speech end and disorderly conduct and harassment begin?

illustration by benjamin hjelm

In civics classes around New Hampshire, impulsive tykes are taught that the US Constitution (as well its elder cousin, the New Hampshire State Constitution) provides many civil rights — chief among them are the right to free speech and the right to remain silent (when accused of a crime).

It begs the age-old practical question: when to speak up and when to shut up, as well as the legal question of locating the line between free expression and disorderly conduct or harassment.

Let us not forget that the First Amendment exists to protect unpopular and often offensive (and increasingly obscene) speech and actions. This question is playing out on the state’s most idyllic Main Streets not over war, civil rights, religion or even politics, but over parking tickets.

Two particular cases have dominated the news lately — one in Littleton and another in Keene — that shed light on the ensuing fight. 

In Littleton, a 72-year-old retired attorney and Vietnam veteran, over several days in January, 2014, lit into a parking enforcement officer with a barrage of foul language — including several f-bombs and dubbing the PEO “the Parking Nazi” — after being served several tickets for an expired meter. The latter phrase stuck as the man’s arrest for two harassment charges and disorderly conduct became public banter in the local news outlets.

The American Civil Liberties Union took on the case along with a local attorney and demanded the charges be dropped and threatened municipal and individual liability. ACLU attorney Gilles Bissonnette called the charges “outrageous” and, although offensive, the expression “was constitutionally protected speech” done in a public place, witnessed by few bystanders and professionally received by town officials. He provided a litany of case law that delineates harassment and disorderly conduct from free speech.

The trigger on both charges is whether the spoken or written words will provoke violence or disorder. The classic example is yelling “fire” in a crowded theater (unless there is a fire). The disorder here is obvious, but as Manchester attorney Jon Meyer says, “Harassment is subjective.” And usually focused at a specific, often public-employed, person.

The distance from “cool calm” to “red hot” varies greatly from person to person, but we (and the law) expect front-line public and law enforcement officials to have tougher skins and adequate training. As Charles Bauer, a Concord lawyer, says, “Police officers and other law enforcement officials are not ‘ordinary citizens.’”   

Public scrutiny of law enforcement officers has increased dramatically with the advent of readily available video recording devices, along with organized political activists who push the limits of liberty in order to provoke and exploit a desired response.

But Bissonnette, the ACLU attorney, was quick to note that his client’s comments didn’t provoke the offending officer at all and pointed to the police report that described the officer’s conduct as routine and professional. The PEO “spoke calmly … and then walked away from the subject.”

The charges seem to stem from the confusion of swear words for “fighting words” (that provoke violence), and Bissonnette provided case after case and curse word after curse word that showed “police cannot arrest people for using profanity in public or directing it at enforcement officers.”

In the end, Littleton settled and paid $17,500 ($13,000 from their insurer) to the ACLU for its legal fees. Select board member Marghie Seymour, herself an attorney, told local paper the White Mountain Record, “It’s hard for the courts to draw a line where somebody has a First Amendment right and where they are being inflammatory and inciting people to violence. When you go to court with something like that, you never know if you are going to win or not. Sometimes you settle things because it’s not worth spending the time, resources or money when the issues are just not cut and dry. This was not a cut and dry case. It could have cost the town a lot of money.”

In Keene, a high-profile group calling themselves “Robin Hooders” has been irritating city leaders by following and at times badgering parking enforcement officers and feeding strangers’ expired meters to thwart the issuance of parking tickets. But it is the group’s recording and posting videos of their interactions with ticket-writing officials that has caused the greatest stir. City officials say they’re not against feeding meters, but rather the regular, organized harassment of their employees who are just trying to do their jobs.

In response, they tried to create a 50-foot safety buffer zone around parking enforcement officials and brought an injunction against the Robin Hooders to, according to Bauer, who represents the City of Keene, restrict “conduct that substantially interferes with the ability of municipal employees to perform their jobs.”

This notion of creating zones of protection for the state against criticism from the public is wrong, says Meyer, who represented several members of the Robin Hoods. “It should be the other way around,” he adds.

Meyer pointed to recent abortion clinic buffer zone Supreme Court decision where Justice Antonin Scalia said, “Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in public streets and sidewalks.”

The lower court dismissed the case and Keene appealed to the state’s Supreme Court, which acknowledged some of Keene’s concerns, but sent it back to the lower court. Bauer says the court recognized “the power of judges to issue properly tailored injunctions against individuals who engage in conduct that is taunting, harassing and intimidating against public employees.” 

Meyer says the ruling “raised more questions than answers.” Answers that will undoubtedly further define and possibly confuse scholars as well as schoolchildren as to the limits of free speech.