Thousands of complaints arrive at the NHCLU office every year. Some are referred to other agencies dedicated to the specific area of the complaint. The remainder are reviewed by our staff attorney and other legal volunteers to determine how best to protect the civil liberties of those who seek our assistance. Much of our legal work never reaches the courtroom. Through discussion, negotiation and pressure, our attorneys resolve many issues. However, when negotiations do not succeed, our staff attorney and cooperating attorneys across the state ask the courts to protect the individual rights of residents, and compel the government to honor the Bill of Rights.
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Update to Jonathan Doyle's Complaint for Injuntive Relief.
STATEMENT OF THE CASE
On June 4, 2010 the plaintiff filed a Complaint for Injuntive Relief, Declaratory Relief and Damages pursuant to 42 USC §1983. The plaintiff alleged that the defendants violated his right to free expression under Part 1, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution when they required him to obtain a Special Use Permit to engage in a small scale art performance at Mt. Monadnock State Park, a public forum. The plaintiff requested that the court declare that the permit regulation was unlawfully applied to regulate his activity, that the defendants be enjoined from further interference with his small scale art project, that the court order nominal damages, attorneys fees and the cost and expense of the action.
On September 13, 2010, after hearing, the trial court (McNamara, J.) denied the plaintiff’s relief holding that he could not establish a likelihood of success on the merits.
Both the plaintiff and the defendants moved for summary judgment and both filed reply memoranda in opposition to their opponent’s summary judgment motions. Although the plaintiff requested a hearing, the court (Smukler, J.) issued an order denying the plaintiff’s Motion for Summary Judgment on May 20, 2011 without a hearing.
This appeal followed.
STATEMENT OF THE FACTS
September 6, 2009 dawned sunny and temperate in New Hampshire. Plaintiff, Jonathan Doyle, a sometimes landscaper, sometimes janitor, and full time free spirit, filmmaker and performance artist decided to take advantage of the day to engage in an art performance that he called Bigfoot on Mt. Monadnock. That morning the plaintiff purchased a gorilla costume from IParty and, with his then girlfriend, climbed Mt. Monadnock in Jaffrey, carrying the gorilla costume in a backpack. At the summit he donned the gorilla costume and started to perform. He beat his chest with his hands and roared, then retrieved a small handheld video camera from his backpack and walked up to the hikers assembled on the mountain, while still in costume, and asked if any of them had seen “Bigfoot” on the mountain, and if they would like to be interviewed about their sighting. Many wanted their pictures taken with “Bigfoot” and many wanted to be interviewed. According to the plaintiff, the purpose of the film shoot was to draw together community in a way that was humorous and experimental. (Append,1-2). The footage that the plaintiff shot is attached and can be viewed on the disc at Chapter 2. (Append. 3)
As he exited the park the plaintiff asked two park employees if they had heard that Bigfoot has been sighted on the mountain. They responded in the affirmative and the plaintiff asked them to sign notes verifying the sighting. He took the notes to both the State Police and the Troy Police in an effort to garner publicity.
The plaintiff posted photographs and the footage that he had filmed on his website, NYCreator and on YouTube. The plaintiff was encouraged by the enthusiastic response to his performance, and decided to produce a sequel called Bigfoot Captured on Mt. Monadnock. He drafted a press release and tried to get publicity for his project. On September 17, 2009 the Keene Sentinel ran a front page article featuring a photo of the plaintiff at the summit of Mt. Monadnock in his costume. (Append. 4-8) The article was headlined, “Bigfoot sneak peak. Stage is set: Monadnock hike promises Sasquatch suspense”. The article began
A certain large, hairy creature spotted on Mount Monadnock nearly two weeks ago has been accused of the following: growling, smelling foul; being wicked scary, skulking around like Yogi Bear in search of a picnic basket and devouring a small child.
“We think it was Bigfoot” said one hiker. “He had really big feet and lots of hair on him.”
The mythical Sasquatch is set to return to the mountain this Saturday afternoon, when Keene resident Jonathan C. Doyle promises, “Hikers might see some very strange things happening.”
The appearance is part of a performance art piece by Doyle, an artist and videographer whose varied resume includes animator; theater production designer and advertiser through his online company: NYCreator.
On September 19, 2009, the plaintiff and five friends, none of whom were professional actors, climbed Mt. Monadnock. At a junction in the trails called the Halfway House site, the six prepared to perform. The Halfway House is so-called because it is the site of an old hotel that burned down in 1954 and is now a large clearing, an ideal location to perform and film. One of the participants put on the gorilla costume, a second put on a Snuggie and painted his face blue to act the part of “Boda the Blue Yoda”, and the third, a six year old, was dressed as a pirate. As they were setting up to shoot a scene, defendant Patrick Hummel, the park manager, approached the group. Film footage that was taken on that date can be viewed on the attached disc in Chapter 1. (Append. 3)
This encounter between defendant Hummel and the plaintiff was not a chance encounter; rather, Hummel sought out the plaintiff. Hummel had read the aforementioned account in the Keene Sentinel. Between September 17 and 18 the Bigfoot film project was the subject of several email communication exchanges between Mr. Hummel and his superiors. The tone of these communications was a mixture of dismissive, angry and disparaging.
The first email was sent to Hummel’s direct superior Brian Warburton and was drafted September 17th at 9:58 AM.
Subject: Bigfoot problem on Monadnock…not kidding.
Hello Brian,
No, I haven’t lost my mind…well, not completely anyways.
Labor day weekend, aside from the rest of the madness we went through, we had a college student dressed in a Bigfoot costume walking around the summit and trails and having someone videotape him.
Nothing new on Monadnock. Some people mentioned it to Mountain Patrol that day. But as more of an FYI rather than a complaint. We had more than 2,000 people on the mountain that day. We’ve had people do many crazy and absurd things on this mountain over the years. With safety concerns overriding investigating a Bigfoot costume that no one seemed to care about, patrol chose not to pursue this matter and neither did I. They confronted our staff at the Old Toll Road when they came down (Lee Willette) and asked her if anybody saw Bigfoot on the mountain. She said only two people out of the 300 that hiked from the entrance. She found out from them that they were doing a project for their film class at Keene State.
I’ve had film students come into the park before, dress up in costumes, and film for class projects. Most students come and ask permission first. I go over ground rules with them, and make it clear the footage is only to be used for their class project. They film and leave.
These folks never ran anything by me.
Well, now I’ve had newspapers call me this week asking about Bigfoot on Monadnock as if this is a legitimate story. I suspect the people directly involved are informing the newspapers, not the public. They apparently are also going to be doing this again tomorrow or Saturday and the Keene Sentinel wants to cover it.
This has stepped over the line, to me, from being a simple class project to something more involved. I plan on intercepting this party before their climb and speaking with them…..
PS – If you want to waste 5 minutes of your time, he’s on YouTube…
Warburton responded at 10:17 AM that he had been in touch with Matthew Newton, the Director of the NH Film Office “about this silly Bigfoot shooting”. Newton, he wrote, “recommended not allowing this filming to happen again, given the amount of attention they are gathering and the fact they never secured permission through me.”
The next day, September 18, Amy Bassett, a DRED employee, sent an email to Hummel at 1:29 PM quoting a post that the plaintiff had placed on his website:
It was a hot and humid day on the top of Mr. Monadnock with many hikers enjoying the clear skies and incredible views, some all the way to Boston. The most amazing thing happened! A never-seen-before Bigfoot on the summit of Mt. Monadnock. NYcreator was able to capture numerous photos and document compelling interviews with an abundant amount of witnesses which are now up on youtube. Check it out! http://youtube.com/watch?v=4Bqo3d7K9kA. Two state park rangers submitted the following statements:
“It was reported to me today that Bigfoot was spotted on the summit of Mt. Monadnock. Several hikers stated that he was crawling around and growling possibly much like Yogi Bear looking for a picnic basket.”
Lee Willette Park Ranger OTR
“Several People came to me frightened telling me of this terrible beast spotted on the summit. This info was called into headquarters. Headquarters also had reports of sightings.”
Charles Willette Park Ranger OTR
At 2:11 Hummel responded to Bassett’s email that Lee Willette and her husband Charles had indeed given statements to the plaintiff but only to “play along with what was presented as an innocent college project.” He added, “I just talked to Lee and she is fuming. She is really mad about this.” At 2:19 Bassett wrote to Hummel that she had spoken to Ted Austen, the Director, Division of Parks and Recreation, about the situation and at 2:36 Hummel confirmed to Bassett that he had spoken briefly with Austen. (Append. 8-20)
Against this background, Hummel prepared for a confrontation with the plaintiff and his associates on September 19th already determined to stop their project. As he patrolled on the mountain that day he asked several hikers if they had seen the members of the film crew. He found a few hikers who said they saw people in costumes further down the trail, so that is where Hummel went. At the Halfway House, he spotted the crew where they were shooting scenes for the project. He asked to speak with Jonathan Doyle and told him that he and the others would have to leave. Although the defendants now state that the plaintiff was required to leave because he did not have a Special Use Permit, Hummel told the plaintiff he had to leave because of complaints from hikers. (Append. 20) This encounter lasted only moments and the plaintiff immediately and without argument, complied.
SUMMARY OF ARGUMENT
Res 7306 regulates use of DRED owned and managed properties, including Mt. Monadnock State Park. The rule is set forth:
Res 7306.01 Special Use Permit Required. A special use permit shall be required for the following uses of DRED properties:
(a) Holding organized or special events which go beyond routine recreational activities;
(b) Use of a park, park buildings or park facilities for a length of time;
(c) Any organized event or use of park facilities during the non-operating season;
(d) Any event taking place during non-operating hours;
(e) Any event which requires park staff to provide services other than services for routine park operations;
(f) Any organized event at which the organizer or their agent is either selling or serving alcohol; or
(g) Any organized event at which the organizer or their agent is conducting for commercial purposes, including fundraising and charity events.
In order to receive a Special Use Permit (SUP) an applicant must pay a $100 fee, post a $2,000,000 insurance bond, and provide at least 30 days notice. The defendants applied this rule to suppress the plaintiff’s art performance.
The plaintiff offers two challenges to this action. First, he argues that the rule is facially invalid under both the NH Constitution, Part 1. Art. 22 and the First Amendment to the United States Constitution because it is impermissibly vague in that it fails to provide people of ordinary intelligence a reasonable opportunity to understand the conduct it seeks to regulate and it authorizes or even encourages arbitrary and discriminatory enforcement.
Second, he argues that the regulation is overbroad as applied to him because it chills his protected speech and is not narrowly tailored to achieve the State’s asserted objectives.
ARGUMENT
Standard of Review
When the issue before the court is one of constitutional law, it is reviewed de novo. State v. Theriault, 157 215 (2008). When the issue involves a permitting scheme that imposes a substantial burden on the plaintiff’s fundamental right to free speech, the court must conduct an “independent examination of the whole record’ in order to make sure that ‘ the judgment does not constitute a forbidden intrusion on the field of free expression.’ The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 240 (N.H. 2010).
The government bears the burden of proof in all First Amendment cases. Rosen v. Port of Portland, 641 F.2d 1243, 1246-47 (9th Cir. 1981); Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 317, (1980) (presumption of unconstitutionality particularly heavy when law imposes prior restraint). NAACP, Western Region v. Richmond, 743 F.2d 1346, 1354 (9th Cir. Cal. 1984).
I. Res 7306 is void for vagueness
“A statute can be impermissibly vague for either of two independent reasons: (1) it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; or (2) it authorizes or even encourages arbitrary and discriminatory enforcement. State v. Smoke Signals Pipe & Tobacco Shop, LLC, 155 N.H. 234 (2007). A statute, or regulation, that fails under either test violates the constitutional guarantee of procedural due process. Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 639, 701 (2007).
A. Plaintiff’s Performance Art was Protected Speech
A facial attack on a permitting scheme is not warranted unless the plaintiff’s claim involves a fundamental right. Smoke Signals Pipe and Tobacco Shop, 155 N.H. at 239. Although the defendants do not dispute that the plaintiff’s activity is protected by the First Amendment to the United States Constitution and Part 1, Article 22 of the New Hampshire Constitution, it warrants a brief discussion. The First Amendment shields more than political speech; its protection extends to all forms of entertainment including film, theater and music. “If the First Amendment reached only ‘expressions conveying a ‘particularized message’, its protection would never reach the unquestionably shielded paintings of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll’” Bery v. City of New York, 97 F. 3d 689, 694 (2nd Cir. N.Y. 1996), quoting Spence v. Washington, 418 U.S. 405, 411 (1974).
“[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.” “It cannot be doubted that motion pictures are a significant medium for the communication of ideas.” “The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” State v. Theriault, 158 N.H. 123, 127 (2008)(internal citations omitted)
Further, plaintiff’s artistic work is protected even if the plaintiff hoped to reap some financial benefit from his Bigfoot project. "[T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away. ‘It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.’”. Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1063 (9th Cir. Cal. 2010), quoting Riley v. Nati’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 801 (1988).
B. Res 7306 fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it regulates
On September 6, 2009 the plaintiff and his girl friend climbed Mt. Monadnock. At the mountain summit the plaintiff put on a gorilla costume, engaged in a performance that consisted of roaring and beating his chest, and then interviewed several willing hikers about his performance on camera. His performance was witnessed by a park ranger. The plaintiff was not asked to stop his performance or his filming, nor was he advised that he would need to obtain a SUP. (Append. 21-25).
On September 19, 2009 the plaintiff returned. He and four adult friends and one child climbed the mountain, engaged in a performance and interviewed at least one willing hiker on camera. There were some minor variations from September 6th. Six people climbed the mountain instead of two. Three people wore costumes instead of one. The performance took place at the Halfway House site, not the summit. But the main activity was identical – an interactive art performance attempting to engage and amuse fellow hikers. This time the performance was shut down because the plaintiff had not applied for a SUP. A person of ordinary intelligence who had engaged in the performance on September 6th would not understand that a substantially similar performance conducted two weeks later would require a SUP. State v. Hynes, 159 N.H. 187, 200 (2009).
Much of what Res 7306 regulates is easily understood. One needs a permit for “any organized event or use of park facilities during the non-operating season”, for “any event taking place during non-operating hours”, for “any organized event at which the organizer of their agent either selling or serving alcohol” or for “any organized event which the organizer or their agent is conducting for commercial purposes, including fundraising and charity events.”
Thus Grand Dynamics could easily understand that it would need a SUP to host a charity fundraiser involving 80 participants. (Append. 26); Motivating Miles Foundation could easily understand that it met the definition of “organized event” when it intended to use a trail for 100 participants and 20 staff. (Append. 33) Summer Hill Assisted Living hosting a fundraiser for 100 participants could likewise easily understand that the event was an organized event that went beyond routine recreational activity and required a SUP. (Append.36)
But a person of ordinary intelligence would not understand that a small scale art production would be held to the same regulation. Not only did the permitted events differ in scope from the plaintiff’s, but they also differed in kind. Not one of the SUPs issued for Monadnock State Park in 2009 involved speech or conduct that was protected by the First Amendment.
1. Relevant terms are not defined
The Defendants assert that the plaintiff required a SUP because his small scale art performance was an organized event which went beyond routine recreational activities. Res 7306.01(a). The terms “organized event” and “beyond recreational activities” are not further defined in the regulations, nor has DRED promulgated any objective criteria to guide its determination of what constitutes an “organized event” or an activity that is “beyond routine recreational”.
"Due process requires that a statute proscribing conduct not be so vague as to fail to provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited. " "The necessary specificity, however, need not be contained in the statute itself, but rather, the statute in question may be read in the context of related statutes, prior decisions, or generally accepted usage. " State v. Porelle, 149 N.H. 420, 423 (2003). (internal quotations omitted).
When a regulation fails to clearly define a relevant term, the court may “interpret [the] phrase in light of the purpose of the ordinance.” Bleiler v. Chief, Dover Police Dep’t, 155 N.H. 693, 702-703, quoting Derry Sand & Gravel, Inc., 121 N.H. at 505. See, State v. Gatchell, 150 N.H. 642 (2004) (license suspension statute not vague where statute is applicable only after conviction for an offense defined within the Motor Vehicle Code); State v. Smoke Signals Pipe & Tobacco Shop, LLC, 155 N.H. 234 (2007) (the section of the drug paraphernalia law which prohibits possession of objects ‘customarily intended for use’ in ingesting a controlled substance provides ample notice of prohibited objects when statute contains a nonexhaustive list of items that provide guidance in understanding how statute may be interpreted). Derry Sand & Gravel, Inc., 121 N.H. 501 (1981) (Dump ordinance was not unconstitutionally vague since the terms "good cause and sufficient reason" for the issuance of a license provided adequate criteria for the town board of selectmen to exercise discretion, particularly when the ordinance contained a statement of purpose that further defined the terms of the ordinance).
As will be discussed in greater detail below, the asserted purposes of Res 7306 are to manage competing uses of DRED property and mitigate the impact of commercial events. In that context, a performance artist like the plaintiff would not be put on notice that his small scale production would be included in the definition of “organized event” or that it would be considered an activity that was outside the scope of routine recreational activities.
2. There is no scienter requirement
This Court has previously held that a scienter requirement in a statute ameliorates the concern that the statute does not provide adequate notice to citizens regarding the conduct that is proscribed. State v. MacElman, 154 N.H. 304, 308 (2006). In MacElman this Court wrote that “RSA 318-B:16’s requirement that drug-dependent persons must resort to the particular location for the purpose of using controlled drugs does not leave any doubt, for a person of ordinary intelligence, as to whether the lawful and prescribed consumption of medication in one’s home or other location is prohibited by statute. Clearly, it is not.” 154 N.H. at 308 (emphasis in the original). Likewise, the stalking statute was not unconstitutionally vague because the prohibition on following a person ‘from place to place’ was ameliorated by a scienter requirement. State v. Porelle, 149 N.H. 420 (2003).
Res 7306 has no requirement that the plaintiff know or even that he should have known that his performance would constitute an “organized event” or that it would be “beyond a routine recreational activity”.
C. Res 7306 authorizes or even encourages arbitrary
and discriminatory enforcement
“A government regulation that allows arbitrary application is ‘inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.’ To curtail that risk, ‘a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license’ must contain ‘narrow, objective, and definite standards to guide the licensing authority.’ The reasoning is simple: If the permit scheme ‘involves appraisal of facts, the exercise of judgment, and the formation of opinion’, by the licensing authority, ‘the danger of censorship and of abridgment of our precious First Amendment freedoms is too great’ to be permitted.’” Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-131 (U.S. 1992) (internal citations omitted).
The case of State v. Smoke Signals Pipe & Tobacco Shop, LLC, 155 N.H. 234 (2007) is illustrative. This court found that the drug paraphernalia statute did not authorize or encourage arbitrary and discriminatory enforcement “because the statutory scheme provides comprehensive guidelines to govern law enforcement”. Id at 241. The court then went on to list all the objective criteria that would guide enforcement of the statute.
DRED has not promulgated any internal rules or objective criteria to guide a determination of what constitutes an organized event that would require issuance of an SUP. (Append.46-51). With respect to the definition of those activities that are beyond routine recreational activities, the Defendants contend that the DRED website adequately notifies the public of those activities that constituted routine recreational activities. (Append. 51) The DRED website contains what is called an Icon Legend which shows all the potentially allowed recreational activities on DRED property (Append. 87). The Monadnock State Park web page lists those activities that are permitted at Mt. Monadnock. (Append.88). According to Mr. Austen all uses that are not affirmatively allowed would be prohibited without a SUP. Thus, according to the website biking and horseback riding are not considered routine recreational activities on Mt. Monadnock and would require a SUP if one were to engage in them. In such a highly utilized area, that is understandable. But, incomprehensibly, wildlife viewing does not appear to be allowed on the mountain without a SUP, since the wildlife viewing icon is omitted from the Mt. Monadnock web page. What this means is that the website offers some but not comprehensive notice to the public as to what recreational activity will be deemed routine on Mt. Monadnock.
Because there are no objective criteria to guide their determination, DRED officials have applied and may continue to apply the permit scheme in an arbitrary and discriminatory manner. For instance, according to the defendants, weddings would not require a SUP, while a candidate encouraging people to vote for him, or a person passing out religious material, both actions which are is protected by the First Amendment, would require a SUP. (Append.51,54-56, 60-62) Connecticut Public Television brought a camera crew onto Mt. Monadnock without the necessity of obtaining a SUP. (Append. 12) Film students have dressed up in costume and filmed without the necessity of obtaining a SUP. (Append. 13) Young people have carried a couch up the mountain without the necessity of obtaining a SUP. (Append. 14)
In order to obtain a SUP one is required to pay a $100 fee. Although the regulation does not appear to allow it, DRED officials have waived the fee. Because there are no objective criteria guiding their determination of when to do so, the fees have been waived in an arbitrary and discriminatory manner. For instance the fee has been waived for events staged by the National Guard (Append 78, 95-97) but it is highly unlikely that DRED would waive the fee for a comparable event held by a similarly sized group promoting peace. The fee was also waived for the Motivating Miles Hike as “a gesture” (Append. 98)
The arbitrary nature of the permitting scheme was highlighted by the deposition testimony of Ted Austen, the Director, Division of Parks and Recreation for DRED. He testified that before he would issue a SUP to the plaintiff he would have to “look him in the eye”. (Append. 66-71).
A regulation of this type must furnish "narrowly drawn, reasonable and definite standards" that are "reasonably specific and objective, and do not leave the decision 'to the whim of the administrator.'" Sullivan v. City of Augusta, 511 F.3d 16, 36-37 (1st Cir. Me. 2007) quoting Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002). Res 7306 fails this test.
II. Res 7306 is overbroad on its face because it chills protected speech and is not narrowly tailored to achieve the State’s asserted objectives
New Hampshire’s overbreadth law is well-settled. “The purpose of the overbreadth doctrine is to protect those persons who, although their speech or conduct is constitutionally protected, ‘may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.’… “While the Constitution ‘gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere,’ the application of the overbreadth doctrine is ‘strong medicine’ to be employed ‘only as a last resort.’” State v. Theriault, 158 N.H. 123, 125 (N.H. 2008)(internal citations omitted). In the instant case, we are, of course, well within the vast and privileged sphere of the First Amendment.
That Res 7306 regulates speech, rather than punishes it is of no moment. Under the regulation the plaintiff would need to submit a $100 fee, and post a $2,000.000 insurance bond. A $2,000,00 insurance bond cost EarthDance Institute $315. (Append. 102). There is no doubt that this expense may cause the defendant and other artists to refrain from the exercise of protected speech.
A. Res 7306 imposes a prior restraint on artistic expression
A regulation that imposes a condition upon free expression such as a permit fee is a prior restraint. There is a heavy presumption against the validity of prior restraints. Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992). “Prior restraints are inherently suspect because they threaten the fundamental right to free speech.” State v. Chong, 121 N.H. 860, 862 (N.H. 1981). The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 240 (N.H. 2010).
When a regulation is “content neutral”, as Res 7306 concededly is, the court must determine if the regulation is a reasonable “time, place, or manner” restriction on protected speech. Ward v. Rock Against Racism, 491 U.S. 781(1989). This determination requires an inquiry into whether the restriction: (1) is “justified without reference to the content of the regulated speech”; (2) is “narrowly tailored to serve a significant governmental interest”; and (3) “leave[s] open ample alternative channels for communication of the information.” Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984).
B. The asserted goal of the regulation is to manage competing uses of the park property and mitigate commercial events
A regulation is not overbroad if it is narrowly tailored to achieve the government’s asserted objectives. State v. Zidel, 156 N.H. 684, 694 (2008) The word asserted is an important qualifier because it guards against hypothesized rationales for the regulation. Res 7306 has two asserted objectives: the first is to regulate competing uses of park land (Append. 104-105), and the second is to mitigate commercial events (Append 44).
The trial court erred when it found that in addition to the asserted interests, that the government has an interest in protecting the park’s visitors from “unwelcome or unwarranted interference, annoyance or danger” and that, because Mt. Monadnock is used for the “potentially dangerous activity of hiking on challenging terrain, Res. 7306 is also directed at safety concerns.”
This latter finding, that Res. 7306 is directed at safety concerns, can be dealt with summarily. It is simply wrong. When asked about this at his deposition Defendant Bald, the Commissioner of DRED, stated, “The dangerous activity of hiking. I don’t necessarily see how that affects the permit.”(Append. 104-105)
The government has no interest in protecting park visitors from unwelcome or unwarranted interference or annoyance. The defendants have argued that the government was justified in requiring a SUP because a handful of hikers complained to Defendant Hummel that the enjoyment of their hike was interrupted when the plaintiff’s film crew approached them and asked for a comment about Bigfoot. In effect the Government is arguing it has a substantial interest in shielding the unwilling listener.
First, this is factually inaccurate. It is apparent from the email communications preceding September 19th that the defendants had already decided to shut down the plaintiff’s production. That determination was made notwithstanding the fact that the plaintiff’s activity on September 6th had not occasioned one single hiker complaint. Hiker interference or annoyance cannot be used as an after the fact justification for requiring the permit.
But more importantly, the plaintiff’s constitutional right to the free exercise of speech cannot be limited by the few people who might have found his speech inopportune, or even annoying. “Listeners' reaction to speech is not a content-neutral basis for regulation.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-135 (U.S. 1992). As recently as March of this year the United States Supreme Court stated, “ ‘the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, …the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.’” Snyder v. Phelps, 562 U.S. (2011), quoting Erznoznik v. Jacksonville, 422 U.S. 205, 210-211(1975). In this case, nothing prevented the annoyed hiker from simply proceeding up the trail and leaving the excitement of the film crew behind.
C. The conditions for obtaining a permit are not narrowly tailored to achieve the government’s asserted objectives
The conditions that the regulation imposes on one seeking a SUP are not narrowly tailored to achieve the government’s asserted interest in managing competing uses of its land and/or mitigating commercial use. This is especially true in the case of the $100 fee.
The Supreme Court has held that a government cannot profit from imposing licensing or permit fees on the exercise of a First Amendment right. Murdock v. Pennsylvania, 319 U.S. 105, 133-14 (1993). Only fees that cover the administrative expenses of the permit are permissible. Cox v. New Hampshire, 312 U.S. 569, 577 (1941). Citizens Action Group v. Powers, 723 F. 2d 1050, 1056 (2nd Cir. 1983)(“Licensing fees used to defray administrative expenses are permissible, but only to the extent necessary for that purpose.”)
There is a $4 fee for an adult to enter Mt. Monadnock State Park, including adults participating in organized events. Presumably that fee covers the administrative expense involved in having an individual use park property. The government has not asserted the rationale for an additional fee twenty-five times greater than the entry fee for a SUP. Does it cost $100 to process the permit application?
D. The regulation does not leave open ample alternative channels for communication of the information.
If it is to be applied to First Amendment activities, the SUP requirement is unconstitutional on its face because it does not provide for a waiver of fees or the insurance bond due to inability to pay. Many courts have required waivers when fees or insurance would otherwise preclude groups from using traditional public forums to exercise their fundamental right. Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1522 (11th Cir. Fla. 1985)( The granting of a license permit on the basis of the ability of persons wishing to use public streets and parks to demonstrate, to pay an unfixed fee for police protection, without providing for an alternative means of exercising First Amendment rights, is unconstitutional); ; Nemo v. City of Portland, 910 F.Supp. 491(D. Or. 1995) (there must be a “provision for waiver of the fee for poor or indigent persons,” even of $25 administrative fee); Pritchard v. Mackie, 811 F.Supp. 665 (S.D. Fla. 1993) (there must be an exemption for those that cannot afford, or are unable to get, insurance) Invisible Empire of Knights of Ku Klux Klan v. Mayor, 700 F. Supp. 281 (D. Md. 1988) (absence of waiver is “unconstitutional restraint on free speech”).
“Common sense drives the point home: however neutral the government's intentions in enacting a law, the operation of that law may have a vastly uneven impact” NAACP, Western Region v. Richmond, 743 F.2d 1346, 1356 (9th Cir. Cal. 1984).
“Another significant consideration is that section 010 restricted access to the public parks, the "quintessential public forums." … "[P]ublic fora have achieved a special status in our law; the government must bear an extraordinarily heavy burden to regulate speech in such locales." Parks, in particular, "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." …This venerable tradition of the park as public forum has - as suggested by the attendant image of the speaker on a soapbox - a very practical side to it as well: parks provide a free forum for those who cannot afford newspaper advertisements, television infomercials, or billboards… (financial considerations "may make the difference between participating and not participating in some public debate"); City of Richmond, 743 F.2d at 1356 (warning that "we must examine restrictions on speech with particular care when their effects fall unevenly on different . . . groups in society," and reminding that "there is no equality in a law prohibiting both rich and poor from sleeping under the bridges of Paris").
Grossman v. City of Portland, 33 F.3d 1200, 1204-1205 (9th Cir. Or. 1994) (internal quotations omitted).
Under the permit scheme, if a performance artist like plaintiff or an impoverished political organization wishes to hold a rally but cannot pay the $100 fee plus obtain a $2,000,000 insurance bond, then they are silenced. All doors are closed. There is no alternative channel for communication.
Further, the plaintiff’s claim is not defeated by virtue of the fact that he did not put the defendants to the test and apply for a SUP. “In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56 (U.S. 1965)
III. Res 7306 is overbroad as applied to plaintiff’s small scale art project
When a facial challenge to a statute or regulation fails, the court conducts an analysis of whether any application of the regulation that infringes upon protected speech may be remedied on a case-by-case base. State v. Theriault, 157 N.H. at 219.
The application of Res 7306 to plaintiff’s small scale art project does infringe upon protected speech. As discussed above, the First Amendment protects performance art to the same extent that it protects political speech.
Essentially, the asserted purpose of Res 7306 is to allow the park administrators to manage large scale events that may impact the use and enjoyment of the park by other hikers. A fee, insurance bond and 30-day notice may be necessary for the park managers to plan for and accommodate an event like Take a Hike for Humanity which involved 300 – 500 people climbing Monadnock over a two day period, but it is completely unnecessary when it comes to plaintiff’s small scale art project.
In general, a regulation that is applied equally to large groups, small groups or even lone participants will be struck down as overbroad. Boardley v. United States DOI, 615 F.3d 508, 520 (D.C. Cir. 2010). Accord, Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down licensing scheme for public parades because the city's "significant interest in crowd and traffic control, property maintenance, and protection of the public welfare is not advanced by the application of the ordinance to small groups"); Cox v. City of Charleston, 416 F.3d 281, 283 (4th Cir. 2005) (ordinance barring "any person" from participating in "any parade, meeting, exhibition, assembly or procession . . . on the streets or sidewalks of the city" without a permit is unconstitutional when applied to small groups because the city failed to establish why burdening such expression is necessary to facilitate its interest in keeping its streets and sidewalks safe, orderly, and accessible.)
Here the defendants have not demonstrated how requiring a permit for a small art performance would serve the government’s interest in mitigating commercial activity or regulating competing uses of the park.
Defendant Hummel advances inconsistent claims about why the project was shut down. At one point he claims it was shut down because the plaintiff was trampling vegetation and disturbing other hikers (Append.20); at another he says it was because it was an “organized event” in that it was publicized (Append.15). Both of these are sham rationales. DRED has no rule against trampling vegetation (Append. 13-14), and the fact that the performance garnered attention may have served to frustrate the park staff, but it does not turn a small scale art project into an event requiring regulation.(Append. 109-110) A mosquito may be an annoyance, but it is still just a mosquito.
The government’s interest and the burden that the park regulation imposes on speech do not sufficiently match. Mt Monadnock State Park is a vast territory encompassing more than 5,000 acres. It is climbed by over 100,000 hikers annually. The park website boasts, “A magnet for hikers, Monadnock is said to be the world's third most climbed mountain, following Japan's Mount Fuji and China's Mount Tai”. Hikers routinely climb the mountain in groups of six or more, with camera and video equipment (Append. 11-115). In fact, rather than discourage organized groups because they may have an adverse effect on the park, the park encourages hikers who climb the mountain in groups of 20 or more by offering a group discount (Append. 82-83). Against that backdrop, plaintiff’s activity is de minimis.
The permit requirements contained in Res 7306 may be justified in the case of large groups, where the burden placed on park facilities and the possibility of interference with other park users is more substantial, but it sweeps too broadly in regulating small groups. Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th Cir, Or. 1994).
A. The $100 fee
The $100 fee charged for a SUP places an undue burden on the plaintiff’s speech, and those of other artists. Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way.” Murdock v. Pennsylvania, 319 U.S. 105, 110-112 (1943).
Murdock was decided two years after the decision in Cox v. New Hampshire, which upheld at $300 parade permit fee. The Supreme Court clarified the extent to which a municipality can charge fees as a prerequisite to the exercise of First Amendment rights in a public forum and invalidated a city ordinance which required distributors of religious literature to pay a fee as a prerequisite to conducting their activities. In rejecting the fee the Court stated: "It is a license tax -- a flat fee imposed on the exercise of a privilege granted by the Bill of Rights. A State may not impose a charge for the enjoyment of a right granted by the Federal Constitution." 319 U.S. at 113.
Mt. Monadnock State Park is the quintessential public forum. There is a $4 fee per adult and a $2 fee per child to hike the park. That fee is justified to maintain the park. There is no justification for a $100 fee to speak in the park, absent a large scale rally.
The Trial Court found that the $100 fee was not an undue burden on the plaintiff because 1) he had not established that he was indigent; 2) he was promoting his art and hoped to reap financial revenue from his project; and 3) he could, after all, afford the video camera and costumes.
This misses the point. Whether the plaintiff could in fact shell out $100 plus the cost of the insurance bond for the privilege of exercising his right of free expression is not the issue. The issue is that the government cannot require him to do so unless it can demonstrate that the fee is necessary to achieve its interest. The fee must be necessary – not helpful or desirable - but necessary.
Furthermore, the fact that the plaintiff hoped to realize some financial gain from his art does not disqualify him from the protection of the First Amendment. Plaintiff’s commercial activity consisted of offering Bigfoot merchandise for sale on his website. This activity is “merely incidental and collateral” to his main objective, which is to create performance art. See, State v. Mead, 230 Iowa 1217 (describing the activities of members of a religious sect who sold religious literature as “merely incidental and collateral” to the main objective of preaching and publicizing its doctrines). On this record it is a distortion of facts to describe the plaintiff’s small artistic endeavor as a “full-fledged commercial production”. Murdock v. Pennsylvania, 319 U.S. 105, 110-112 (1943).
Additionally, small scale commercial activity is permitted on the mountain without regulation. The Court need only google “Mt. Monadnock” to find an abundance of representations and merchandise offered for sale. Professional photographers take pictures of Mt. Monadnock and offer them for sale. Professional artists paint pictures of the mountain and offer them for sale. Indeed, Commissioner Bald spoke about his appreciation for those paintings. “I love White Mountain Paintings, which was a group of artists who painted in the 1830s to 1900s. A number of them also painted Monadnock. And so for that reason, I like the mountain as well.” (Append.117)
B. Insurance Requirement
In addition to a $100 fee Res. 7306 requires the permit seeker to post a $2,000,000 insurance bond. This requirement may be reasonable for groups such as General Dynamics which held a charity fundraiser involving 80 participants or the Motivating Miles Foundation which hosted an event involving 100 participants and 20 staff; but it is unreasonable when applied to small scale art performance.
In Pritchard v. Mackie, 811 F. Supp. 665 (S.D. Fla. 1993) the court found the posting of a $1,000,000 insurance bond unconstitutional. The Court relied on Cox v. New Hampshire, 312 U.S. 569 (1941) and Murdock v. Pennsylvania, 319 U.S. 105 (1943), the two seminal cases addressing the issue of parade and rally permits and concluded that an ordinance that charges more than a nominal fee for using a public forum violates the First Amendment.
If the purpose of the insurance bond is to protect the park against wrongful actions or liability from tortious injuries, there are less burdensome ways to accomplish these goals than to impose the requirement of a large insurance bond. “A free society prefers to punish the few who abuse the rights of speech after they break the law than to throttle them and all others beforehand.” Eric Neisser, Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257, 302-303 (1985).
C. Advance Notice
Res 7306 requires the permit seeker to provide 30 day notice. Again, this may be a reasonable restriction on a large scale event, but not on a small artistic endeavor. In striking down a 20 day notice requirement for a parade permit, the ninth circuit stated:
It is also indisputable that the Richmond parade ordinance substantially inhibits speech. First, all advance notice requirements tend to inhibit speech. The simple knowledge that one must inform the government of his desire to speak and must fill out appropriate forms and comply with applicable regulations discourages citizens from speaking freely. Second, the delay inherent in advance notice requirements inhibits speech. By requiring advance notice, the government outlaws spontaneous expression.
NAACP, Western Region v. Richmond, 743 F.2d 1346, 1355 (9th Cir. Cal. 1984). Accord, Sullivan v. City of August, 511 F. 3d 16(1st Cir. Me. 2007) (striking down advance notice requirement of parade ordinance because it does not allow for spontaneous demonstrations).
Spontaneity is at the heart of artistic expression. A regulation that completely stifles spontaneous expression is not narrowly tailored.
Conclusion
The Trial Court relied on Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) and Cox v. State of New Hampshire, 312 U.S. 569 (1941) in ruling that the regulation is constitutional. However, the facts in those cases are not comparable to the present case. Cox upheld a $300 parade fee for a large group of people parading up and down on the public sidewalk in front of the Manchester City Hall, one of the most heavily traveled walkways in Manchester, disrupting the flow of pedestrian traffic for an estimated 26,000 people. In upholding the fee requirement, the Court said that because the state had imposed the charge to meet expenses incidental to the administration of the regulation and to meet costs of policing streets during a parade, the fees were valid. Thomas involved an ordinance requiring up to 28 days notice for an assemblage of more than 50 people in a park in Chicago. The Court found that the ordinance was narrowly tailored to manage multiple uses of large groups in an urban setting. In stark contrast, the plaintiff’s small scale art project on a 5,000 acre park would have virtually no impact on the mountain experience for the majority of hikers.
As the Supreme Court has said, "[A] State may not choose means that unnecessarily restrict constitutionally protected liberty. 'Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.' If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties.” Elrod v. Burns, 427 U.S. 347,363 (U.S. 1976).
RELIEF REQUESTED
The plaintiff requests this Court to reverse the judgment of the trial court, enter a judgment that Res 7306 is unlawful on its face and as applied to him and remand the case to superior court for determination of nominal damages, costs and expenses of this action, and attorneys’ fees.
REQUST FOR ORAL ARGUMENT
Plaintiff respectfully requests that he be allowed fifteen minutes to present his oral argument before this Honorable Court. Attorney Barbara Keshen will present oral argument.
Respectfully submitted,
JONATHAN DOYLE
By and through his attorneys,
Barbara R. Keshen, Bar No. 1361
Barbara R. Keshen, #1361 Jon Meyer, #1744
NH Civil Liberties Foundation Backus, Meyer and Branch
18 Low Avenue 116 Lowell Street
Concord, NH 03301 Manchester, NH 03104
CERTIFICATE OF SERVICE
I hereby certify that two copies of the Appellant’s brief was hand delivered on the 29th day of August, 2011 to AAG Matthew G. Mavrogeorge, Esq.
Barbara R. Keshen
Barbara R. Keshen
In its Order denying the plaintiff’s request for Preliminary Injunction the court found that several of the crew had ape costumes on September 19th. This finding appears to be in error.
In its order denying the plaintiff’s request for a preliminary injunction the Court found that the Park Manager told the plaintiff he had to disband “because he was trampling the vegetation.” This finding is contradicted by Defendant Hummel’s deposition testimony.
________________________________________________
Concord Monitor October 5, 2011
NHCLU files suit
over sex offender law
Group challenges lifetime registration
By Karen Langley
Monitor Staff
The New Hampshire Civil Liberties Union yesterday filed a lawsuit challenging the constitutionality of a state law requiring sex offenders to register:
People convicted of sexual offenses are required to register with the state police and periodically report in person to the local police. The state police maintain a public list of sex offenders with identifying information, such as the offender’s name, physical description, address and convictions. Sex offender in the most severe category are required to register for life.
In a lawsuit filed yesterday in Merrimack Superior Court, the civil liberties group argued that the law violates a constitutional prohibition on retroactive laws. It also argues that lifelong registration interferes with the due process rights of sex offenders who have no opportunity to show they no longer pose a threat.
The suit was filed on behalf of a Hillsborough County man who pleaded guilty in 187 to two counts of sexually assaulting his step-daughter, then a minor. The man, who was not named in the suit, served his sentence and completed rehabilitative counseling, according to the suit. In 1990, the court ruled that he had been rehabilitated and terminated his sentence and probation.
Two years later; state lawmakers enacted a law requiring sexual offenders to confidentially register with the state and report to the police. In 1993, they expanded the law so it applied to sexual offenders who completed their sentences since January 1988, a group that included the petitioner.
The suit describes a progressive expansion of reporting requirements and decline of confidentiality. Lawmakers again changed the law in 1996 by allowing the police to share registry information, previously confidential, with schools and other organizations that dealt with children.
In 1998, they repealed a part of the law that allowed offenders to keep their information private by showing they were a low risk of committing another offense. In 2002, lawmakers allowed the public to view the sex offender registration website, and in 2006, they expanded reporting requirements to include information like Social Security numbers and contact information for landlords.
The suit says that the petitioner was told of the registration requirement in 2004 and has complied with it. Today he is disabled and living in a boarding house, according to the suit. The suit says he applied to live in subsidized housing but was rejected because of his lifetime registration as a sex offender.
In 1994, New Hampshire courts found that the registration law did not violate the state constituion’s prohibition on retrospective laws because the law served a regulatory purpose—allowing the police to share information about the whereabouts of sexual offenders—rather than a punitive purpose. In its suit, the NHCLU argues that the law now goes beyond informing the police and instead punishes offenders, some for crimes they committed before the law took effect.
“The cumulative impact of the Act’s requirements is to punish, humiliate, shame and subject Petitioner to public condemnation for two offenses he pled guilty to almost 25 years ago, and for which he then successfully completed two years of sexual offender counseling,” the suit says.
“If the list if full of people who committed
crimes 20 or 30 year ago but still have to register,
that doesn’t give them realistic information.”
Barbara Keshen
Staff attorney for NHCLU
The suit also argues that people on the list should have a chance to show evidence that they do not pose a threat in the community.
The stat sex offender registry now includes more than 2,000 people, said Barbara Keshen, a staff attorney for the NHCLU. She said some of th entries do not help parents who want to warn their children of danger.
“If the list is full of people who committed crimes 20 or 30 years ago but still have to register, that doesn’t give them realistic information,” she said.