The Occupy New Hampshire members ejected from Manchester’s Veterans Park on October 19, 2011 finally had their say before the New Hampshire Supreme Court yesterday. Represented by Larry Vogelman on behalf of the NH Civil Liberties Union, the 14 Occupiers argued their rights to free speech and assembly trump the City of Manchester’s municipal ordinance establishing a curfew in public parks and furthermore that the definition of free speech in the state’s constitution offers a higher level of protection than does the First Amendment to the US Constitution.
“I am privileged to represent the appellants in this case and through them the 99%,” Vogelman began, and set out to lay out the rationale for the case. He didn’t get far before he was interrupted. “The State argues that there was no unifying message” of the protestors, asserted Justice Carol Ann Conboy. Vogelman replied that the Occupiers were a diverse lot with a variety of grievances, but that they agreed it was possible to organize a society based on mutual respect and consensual decision-making. And that required a 24-hour a day presence in the public park.
By picking up litter, restricting the use of drugs and alcohol, sharing food and shelter with people who were homeless, and working out their differences through discussion, the Occupiers created a harmonious spirit in Manchester’s parks that even reduced the need for police patrols during their short encampment, Vogelman explained.
The attorney did not challenge the notion that the State has the right to regulate time, place, and manner of assembly and speech. But the State still would need a compelling reason for the curfew to trump the free speech and assembly provisions of the New Hampshire Constitution.
The key provisions are Articles 22 and 32 of the NH Bill of Rights.
Art. 22. Free Speech; Liberty of the Press
Free speech and liberty of the press are essential to the security of freedom in a state. They ought, therefore, to be inviolably preserved.
Art. 32. Rights of Assembly, Instruction, and Petition
The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.
The contrast between Article 22 and the US Constitution’s First Amendment is fundamental to the legal point at issue. Where the federal document says the government cannot itself abridge free speech, the state’s founding document gives the state the obligation to actively protect it. At least that’s what the words say, and Vogelman suggested that’s the first place to look to understand the meaning of a law.
The State’s representative, Attorney Lisa Wolford from the Criminal Bureau of the Attorney General’s office, made the curious argument that the encampment was not speech at all, but instead was merely “facilitative conduct.” The Justices did not seem to buy this argument. Justice Hicks asked if civil rights marches had been “facilitative conduct” rather than speech, with a clear implication that he didn’t think so. Justice Conboy even noted that the Occupiers had “a message that could not be conveyed” without a round the clock presence.
Wolford pressed on with arguments challenging the notion that the protests represented speech deserving of constitutional protection. “Their problem was sort of amorphous,” she said. “The core message was not the kind of crystallized symbolic message that you can communicate by a group of tents being in the park overnight.”
Justice Conboy, at least, had a different understanding. The purpose of the encampment, she said, was “to demonstrate and model a democratic and transparent government. That’s the message.”
The Justice may have understood better than the State’s representative what Occupy was trying to say. That doesn’t mean she will agree with the legal case made by Larry Vogelman and the NH CLU. A decision could be months away.