The NH ACLU has filed their 42-page amicus in the Robin Hood NH supreme court case.
The NH ACLU’s attorney, Anthony J. Galdieri argues that the city has no case when they claim Robin Hooders have engaged in “tortious interference”:
In the context of non-violent protests aimed at influencing societal or governmental change, tortious speech is only actionable if it amounts to violent or unlawful conduct. See Claiborne
Hardware Co., 458 U.S. at 917-18 (holding in context of protest that the state may impose
damages only for violent or unlawful conduct, not for non-violent protected activity, even if
that non-violent protected activity causes economic harm).
The NH ACLU also affirms that the city’s proposed restrictions on Robin Hooders are unconstitutional, including a “buffer zone” where speaking to the meter maids would be prohibited, as would be recording them. The proposed restrictions are clear violations of NH Constitution article 8 and 22, which protect the right of people to access a responsive government and protect free speech.
Nor should the city be allowed to handle the Robin Hooders through the courts, says the ACLU:
[The NH constitution] does not provide for government by injunction, where the City’s executive branch can use the court system to make laws for it and thereby circumvent the legislative process. See N.H. Const. Part I, Art. 37.
On page 31 of its amicus, the NH ACLU argues that the city’s claims of Robin Hooders’ interference with “significant governmental interests”, amounts to nothing:
First, the City has no government interest in preventing its PEOs from encountering so-called
hostile or uncomfortable environments. See Cohen v. California, 403 U.S. 15, 24-25
(1971) (holding that merely protecting listeners from offensive messages is not a legitimate
government interest)…Indeed, the City’s job description for its PEOs expressly states that the ability to deal with hostile environments is an essential requirement of the position…Finally, the City has no significant government interest on the facts of this case in
preserving public safety and order. As the pleadings indicate, the City’s primary concern is
protecting its PEOs from “emotional distress” allegedly caused by appellees’ following,
videotaping, and speaking to them; its concern does not appear to be maintaining public safety
and order. That is why the petitions and the complaint are bereft of allegations demonstrating a
real public safety or disorder concern. At most, the record indicates that appellees’ protest
activities have upset members of the public and caused one of them to allegedly assault an
appellee on at least one occasion, but that is not a sufficient reason to censor appellees’
constitutionally-protected activities. See Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949)
Further the NHCLU concludes,
By entering into public service, the City’s PEOs have voluntarily relinquished a
significant amount of their privacy while they are performing their public duties under the New
Hampshire and United States Constitutions. These PEOs have knowingly and voluntarily
entered into a profession subject to public scrutiny and cannot escape such scrutiny by claiming
that it causes them distress, anxiety, or discomfort or by claiming to be so-called “unwilling listeners.”
Stay tuned to Free Keene for the latest on the Robin Hood saga.
