State of New Hampshire v. Catherine Bailey & a. ( 2014 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
9th Circuit Court – Manchester District Division
No. 2012-781
THE STATE OF NEW HAMPSHIRE
v.
CATHERINE BAILEY & a.
Argued: March 5, 2014
Opinion Issued: August 8, 2014
Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney
general, on the brief and orally), for the State.
NH Civil Liberties Foundation, of Concord (Barbara R. Keshen on the
brief), and Nixon, Vogelman, Barry, Slawsky & Simoneau, PA, of Manchester
(Lawrence A. Vogelman orally), for the defendants.
CONBOY, J. The defendants, Catherine Bailey, Rhylan Bruss, Benjamin
DiZoglio, Elizabeth Edwards, Elizabeth Grunewald, Charlene Higgins, William
Hopkins, Michael Joseph, Brian Kelly, Matthew Lawrence, Keith Martin,
Christian Pannapacker, Tara Powell, Matthew Richards, Katheryn Talbert, and
Leah Wolczko, appeal a ruling of the Circuit Court (Lyons, J.) that they violated
a City of Manchester ordinance establishing a park curfew of 11:00 p.m. to
7:00 a.m. See Manchester, N.H., Code of Ordinances § 96.04 (2010); RSA
47:17 (2012). The defendants argue that this ruling amounts to an
unconstitutional infringement of their free speech rights. We affirm.
I
The following facts are drawn from the trial court order on the
defendants’ motion to dismiss or are otherwise supported by the record. In
October 2011, the defendants were participating in a movement known
nationally as Occupy Wall Street. They participated in the movement in
Manchester, operating under the name Occupy New Hampshire. One
defendant explained that “[o]ccupy is a tactic. Occupy means staying in one
place until your grievances are addressed.” The individual participants in
Occupy New Hampshire had a broad range of grievances or issues, including
ending the involvement of the United States in foreign wars, eliminating the
Federal Reserve, limiting the influence of money on elected officials, protesting
the lack of jobs, challenging bank bailouts, and eliminating inequality in the
distribution of wealth.
On October 15, more than 300 Occupy New Hampshire participants met
at Veteran’s Park, a city park in Manchester. Because the participants learned
that the police were holding a benefit at Veteran’s Park, they began their
“occupation” in Victory Park instead. Approximately forty people stayed
overnight in ten to fifteen tents. Prior to meeting at the park, the participants
had formed several committees to manage the group, including a safety
committee responsible for cleaning the park and mediating disagreements, and
a logistics committee responsible for addressing the participants’ needs relating
to such items as food, tents, and clothing. They set up portable toilets and
arranged for participants to shower in nearby homes. The group also
established policies prohibiting littering and the use of drugs and alcohol. The
police conveyed one noise complaint to the group due to drumming, after which
the participants established internal rules for when they would use drums.
Two days later, the participants relocated to Veteran’s Park, where
twenty-five to thirty people in approximately ten tents occupied less than
twenty percent of the park. As in Victory Park, they set up portable toilets, and
designated tents for the various committees. The participants intended to
remain encamped until their grievances were heard.
On October 19, shortly after 11 p.m., the Manchester police told the
people present in the park that the police would enforce the park curfew
ordinance and asked those present to leave. The defendants declined to do so
and received summonses for violating Manchester City Ordinance § 96.04,
which the parties represent states in relevant part: “Parks shall be closed to
the public every day of the year from 11:00 p.m. until 7:00 a.m., except for
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such functions as fireworks displays and such other community programs as
may be authorized by the Public Works Director, or his or her designee.”
The defendants moved to dismiss the charges against them, arguing, in
part, that the “application of the criminal law to their protected rights to free
speech” violated the New Hampshire and Federal Constitutions. The court
conducted a hearing, after which it denied the defendants’ motion and found
the defendants guilty. This appeal followed.
II
The defendants argue that application of the park curfew ordinance
suppressed their expressive activity, which, they contend, is protected under
Part I, Article 22 of the New Hampshire Constitution and the First Amendment
to the United States Constitution. This argument presents a question of
constitutional law, which we review de novo. State v. Biondolillo, 164 N.H.
370, 373 (2012).
Part I, Article 22 provides: “Free speech and liberty of the press are
essential to the security of freedom in a state: They ought, therefore, to be
inviolably preserved.” N.H. CONST. pt. I, art. 22. Similarly, the First
Amendment prevents the passage of laws “abridging the freedom of speech.”
U.S. CONST. amend. I. It applies to the states through the Fourteenth
Amendment to the United States Constitution. Lovell v. Griffin, 303 U.S. 444,
450 (1938). We first address the defendants’ claims under the State
Constitution, and rely on federal law only to aid in our analysis. State v. Ball,
124 N.H. 226, 231-33 (1983).
Although the State Constitution contains robust guarantees of free
speech, it does not offer absolute protection to all speech under all
circumstances and in all places. Biondolillo, 164 N.H. at 373. When assessing
whether government restrictions impermissibly infringe on free speech, we “(1)
assess whether the conduct or speech at issue is protected by the [State
Constitution], (2) identify the nature of the forum in order to determine the
extent to which the government may limit the conduct or speech, and then (3)
assess whether the justifications for restricting the conduct or speech satisfy
the requisite standard.” Watters v. Otter, 854 F. Supp. 2d 823, 828 (D. Idaho
2012); see Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 797
(1985); Doyle v. Comm’r, N.H. Dep’t of Resources & Economic Dev., 163 N.H.
215, 220-27 (2012). We address each step in turn.
A
Part I, Article 22 expressly preserves the right to free speech. Although
we do not accept “the view that an apparently limitless variety of conduct can
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be labeled ‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea, we . . . acknowledge[] that conduct may be
sufficiently imbued with elements of communication to fall within the scope of
[constitutional protections].” Texas v. Johnson, 491 U.S. 397, 404 (1989)
(quotations and citation omitted); see State v. Comley, 130 N.H. 688, 691
(1988) (noting that although statute did not specifically regulate speech, its
application “may have such an effect where a prosecution under the statute
concerns conduct encompassing expressive activity”).
On appeal, the State urges us to “review the threshold question of
whether the defendants’ activity constituted protected speech,” even though
this was not raised in the trial court. This we decline to do. The defendants
argued to the trial court that their encampment in Veteran’s Park “was a
symbolic expression of the possibility of a more democratic, just and
economically egalitarian society” and, therefore, warranted constitutional
protection. The trial court implicitly adopted this position, noting that “[t]he
defendants argue and the State does not dispute that as applied, the
enforcement action . . . encompass[ed] expressive speech.” “We have long held
that we will not consider issues raised on appeal that were not presented in the
[trial] court.” Doyle, 163 N.H. at 222 (quotation omitted); see also State v.
Boyle, 148 N.H. 306, 309 (2002). Consequently, we will assume, without
deciding, that the defendants engaged in constitutionally protected expressive
conduct. See Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293 (1984) (assuming, but not deciding, that overnight sleeping in connection
with demonstration was constitutionally protected expressive conduct).
B
“[I]t is . . . well settled that the government need not permit all forms of
speech on property that it owns and controls.” International Soc. for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). “[T]he standards by
which limitations on speech must be evaluated differ depending on the
character of the property.” Doyle, 163 N.H. at 221 (quotation omitted).
Government property generally falls into three categories — traditional public
forums, designated public forums, and limited public forums. Id. “A
traditional public forum is government property which by long tradition or by
government fiat has been devoted to assembly and debate.” Id. (quotation and
brackets omitted); see also International Soc. for Krishna Consciousness, Inc.,
505 U.S. at 679.
The events at issue occurred in Veteran’s Park, which is a Manchester
city park. The parties agree that Veteran’s Park is a traditional public forum.
Thus, we will assess whether the justification for restricting the defendants’
conduct satisfies the requisite standard for traditional public forums.
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C
As we have previously stated, under the State Constitution the right of
free speech
may be subject to reasonable time, place and manner regulations
that are content-neutral, narrowly serve a significant governmental
interest, and allow other opportunities for expression. Even where
a law regulates conduct generally, without addressing speech in
particular, it nonetheless may effect an incidental regulation of
speech that, like direct regulation, is constitutionally permissible if
it does not exceed the bounds of the limited, content-neutral time,
place and manner standard.
Biondolillo, 164 N.H. at 373 (quotation omitted); see also Doyle, 163 N.H. at
221. We note that “[f]ederal precedent employs the same standard to assess
the constitutionality of restrictions on the time, place, and manner of
expressive activities taking place in a public forum.” Biondolillo, 164 N.H. at
373; see McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (“[T]he government
may impose reasonable restrictions on the time, place, or manner of protected
speech, provided the restrictions are justified without reference to the content
of the regulated speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative channels for
communication . . . .” (quotations omitted)).
The defendants argue that “Part I, Article 22 of the New Hampshire
Constitution is more protective of civil liberties than the First Amendment” and
encourage us to apply the “strict scrutiny test, in which the government must
show a compelling State interest in order for its actions to be valid.” (Quotation
omitted.) We have not previously construed Part I, Article 22 of the New
Hampshire Constitution to be more protective than the First Amendment of the
United States Constitution in the context of time, place, and manner
restrictions. Rather, we have employed the same standard to assess the
constitutionality of these types of restrictions as is used under the Federal
Constitution. See Biondolillo, 164 N.H. at 373; Doyle, 163 N.H. at 221. Given
our precedent, we decline the defendants’ invitation to broaden our standard.
Thus, to be valid, the park curfew ordinance must be a reasonable time,
place, and manner restriction. See Doyle, 163 N.H. at 221. “If [the] restriction
is content-based, it must be narrowly tailored to serve a compelling government
interest.” Id. “If [the] restriction is content-neutral, it must satisfy a slightly
less stringent test — it must be narrowly tailored to serve a significant
government interest” and must “leave open ample alternative channels for
communication.” Id.
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The defendants concede that the park curfew ordinance is content-
neutral on its face. They also concede that the ordinance advances significant
government interests, including “the general public’s enjoyment of park
facilities, the viability and maintenance of those facilities, the public’s health,
safety, and welfare, as well as the protection of city parks and public property
from overuse and unsanitary conditions.” The defendants argue, however, that
the park curfew ordinance, as applied to them, is not narrowly tailored to serve
these significant government interests. They contend that they “took into
account each of the government interests in planning and executing the
occupation.” They highlight their willingness to accommodate competing uses
of the park by beginning the occupation in Victory Park; their concern for
public safety and welfare by enforcing a no drugs or alcohol policy and
patrolling the park to prevent assaults and disruptions; and their attention to
maintaining the park facilities with clean-up details that “left the park in better
shape than when they found it.” Consequently, they argue that “[t]here was no
need to apply the ordinance to [their] constitutionally protected activity in order
to protect the government’s interest in the park.” We disagree.
“[T]he requirement of narrow tailoring is satisfied so long as the
regulation promotes a substantial government interest that would be achieved
less effectively absent the regulation.” Ward v. Rock Against Racism, 491 U.S.
781, 799 (1989) (quotation and ellipsis omitted). There is no doubt that
Manchester may restrict the hours that city parks are open as a means of
achieving the governmental interests in protecting public safety and welfare
and maintaining the condition of the parks. See Clark, 468 U.S. at 298-99 (“No
one contends that aside from its impact on speech a rule against camping or
overnight sleeping in public parks is beyond the constitutional power of the
Government to enforce.”); Peters v. Breier, 322 F. Supp. 1171, 1172 (E.D. Wis.
1971) (concluding park curfew was facially constitutional where it “defines the
area that is restricted and the hours of the curfew” and “provides for
appropriate notice”); cf. People v. Trantham, 208 Cal. Rptr. 535, 544 (App.
Dep’t Super. Ct. 1984) (upholding, as reasonable, late night park closure
regulation and finding “its proscription against anyone entering, remaining,
staying, or loitering in any park during the late night hours . . . is not void for
vagueness or overbreadth”).
The defendants’ argument suggests that the city was required to make
an exception to an otherwise legitimate regulation because they were
“thoughtful and considerate in their use of the park,” “accommodate[d]
competing uses of the park,” and made arrangements to avoid “negatively
affect[ing] the public’s health, safety and welfare while they were in the park.”
We cannot conclude, however, that the city is required to determine, on a case-
by-case basis, whether its significant interests in implementing a time, place,
and manner restriction are likely to be affected. “Plausible public policy
arguments might well be made in support of [requiring] such [an] exception,
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but it by no means follows that it is therefore constitutionally mandated, nor is
it clear that . . . the suggested exception[] would even be constitutionally
permissible.” City Council v. Taxpayers for Vincent, 466 U.S. 789, 815-16
(1984) (citation omitted) (concluding that, although arguments could be made
that exceptions to city ordinance prohibiting posting signs on public property
— such as for signs carrying certain types of messages — would have lessened
severity of impact on expressive activity, such exceptions were not
constitutionally mandated). Determining, on an ad hoc basis, whether a
specific individual or group poses a threat to the city’s interests in maintaining
the park curfew could vest unbridled discretion in a decision-maker and,
consequently, create a risk of granting exceptions to favored speakers. See
Montenegro v. N.H. Div. of Motor Vehicles, 166 N.H. ___, ___ (decided May 7,
2014) (“[I]f arbitrary and discriminatory enforcement is to be prevented, laws
must provide explicit standards for those who apply them.” (quotation
omitted)); see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 133
(1992). We cannot condone such an outcome. See Thomas v. Chicago Park
Dist., 534 U.S. 316, 323 (2002) (“Where the licensing official enjoys unduly
broad discretion in determining whether to grant or deny a permit, there is a
risk that he will favor or disfavor speech based on its content.”); Taxpayers for
Vincent, 466 U.S. at 816 (“To create an exception for appellees’ political speech
and not these other types of speech might create a risk of engaging in
constitutionally forbidden content discrimination.”).
Moreover, “the validity of the regulation depends on the relation it bears
to the overall problem the government seeks to correct, not on the extent to
which it furthers the government’s interests in an individual case.” Ward, 491
U.S. at 801; see also Heffron v. Int’l Soc. for Krishna Consc., 452 U.S. 640, 654
(1981) (noting that inquiry into rule’s constitutionality “must involve not only
[the respondents], but also all other organizations that would be entitled to
[act] if the . . . rule may not be enforced with respect to [the respondents]”). In
Clark, the United States Supreme Court considered “whether a National Park
Service regulation prohibiting camping in certain parks violate[d] the First
Amendment when applied to prohibit demonstrators from sleeping in Lafayette
Park and the Mall in connection with a demonstration intended to call
attention to the plight of the homeless.” Clark, 468 U.S. at 289. The Court
concluded that the First Amendment did not invalidate the regulation, noting
that “[a]bsent the prohibition on sleeping, there would be other groups who
would demand permission to deliver an asserted message by camping in
Lafayette Park[,] . . . and the denial of permits to . . . others would present
difficult problems for the Park Service.” Id. at 297. The Court determined that
the regulation served the government’s interest — “maintaining the parks . . .
in an attractive and intact condition” — because “[w]ith the prohibition . . . at
least some around-the-clock demonstrations . . . will not materialize, [and]
others will be limited in size and duration.” Id. at 296, 297. The Court
explained that the regulation survived constitutional scrutiny in part because
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“the parks would be more exposed to harm without the sleeping prohibition
than with it.” Id. at 297.
A similar analysis applies here. The inquiry as to whether Manchester’s
park curfew ordinance is constitutional must involve not only the defendants,
but all other groups or individuals that would be entitled to use the park if the
ordinance were not enforced with respect to the defendants. Looked at in this
way, the potential impacts from overnight occupation would make it difficult
for the city to achieve its interest in protecting public safety and welfare and
maintaining the condition of the parks. We find unavailing the defendants’
argument that they should have been allowed to use the park overnight
because “they [we]re engaged in constitutionally protected expression.” “All
those who would resort to the park[] must abide by otherwise valid rules for
[its] use, just as they must observe the traffic laws, sanitation regulations, and
laws to preserve the public peace.” Id. at 298. Because it is agreed that the
city has a significant interest in ensuring that its parks are adequately
protected, and because that interest would be less efficiently achieved without
the park curfew than with it, the regulation satisfies the requirement of narrow
tailoring. See Ward, 491 U.S. at 799.
D
The defendants also argue that enforcing the park curfew ordinance was
improper, as applied to them, because it did not leave open ample alternative
channels for communication. They argue that their continuous presence in the
park was necessary to communicate their message. They assert that they
could not, using only the parks’ hours of operation, “actually establish the kind
of egalitarian, transparent democratic government that they aspire for [the]
country.” We disagree with the defendants’ argument that the alternative
channels for communication available to them were insufficient to
communicate their message.
The defendants press a two-pronged argument. First, they argue that
“[u]tilizing [an] alternative channel for communication would [have] require[d]
setting up tents in the park . . . each morning at 7 a.m. and then taking them
down and reassembling them on the adjoining sidewalk at 11 p.m.” Then they
argue that the sidewalk was “not a viable alternative channel of
communication” because they potentially would have been “subject . . . to
arrest under the criteria enunciated in Albers for blockage of the sidewalk or
interference with traffic.” See State v. Albers, 113 N.H. 132, 137-38 (1973); see
also Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000) (“[A]n alternative
must be more than merely theoretically available. It must be realistic as
well.”).
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“The rights of free speech and assembly, while fundamental in our
democratic society, still do not mean that everyone with opinions or beliefs to
express may address a group at any public place and at any time.” Albers, 113
N.H. at 138 (quotation omitted). The defendants were able to communicate
their message in the manner that they wished during the sixteen hours the
park was open. As to the eight hours when the park was closed, we cannot
conclude that the inability of the petitioners to occupy the park constituted an
unreasonable restriction on their protected speech. Although utilizing another
forum to communicate their message during the park curfew may have
inconvenienced the defendants, they were not constitutionally entitled to their
“first or best choice, or one that provides the same audience or impact for the
speech.” Gresham, 225 F.3d at 906 (citation omitted).
The defendants’ argument based upon Albers does not persuade us
otherwise. In Albers, we considered the constitutionality of a statute penalizing
failure “to withdraw from a mob action,” where mob action was defined as “the
assembly of two or more persons to do an unlawful act.” Albers, 113 N.H. at
133 (quotation omitted). We acknowledged that the State’s interests in
enforcing the statute included “the prevention of . . . interference with traffic,
blockage of sidewalks or entrances to buildings, and disruption of the normal
functions of the public facility.” Id. at 137-38 (quotation omitted). However, we
did so in the context of a statute whose purpose “was to proscribe the assembly
of persons for the specific purpose of engaging in ‘imminent lawless action.’”
Id. at 136. We concluded that “the statute aims merely to punish the abuse of
right and subjects the speaker to no restraint of indispensable right. It aims at
abuses.” Id. at 139. (quotation and ellipses omitted). Nothing in Albers implies
that citizens would be subject to arrest when communicating on public streets
or sidewalks in ways that do not otherwise violate valid laws or regulations.
Such a position would be contrary to the well settled principle that,
“[c]onsistent with the traditionally open character of public streets and
sidewalks, . . . the government’s ability to restrict speech in such locations is
‘very limited.’” McCullen, 134 S. Ct. at 2529. Of course, however, we can
make no advance ruling as to the constitutionality of any particular potential
activity; any decision on that issue would hinge on the specific facts and
circumstances of such future conduct.
Consequently, we hold that Manchester satisfied the requirement that
alternative channels of communication remain open to the defendants even
though those channels may have been less effective for their purposes than
those which the defendants would have preferred. See Coalition for Abolition of
Mar. v. City of Atlanta, 219 F.3d 1301, 1319 (11th Cir. 2000) (recognizing that
city could “satisfy the requirement that alternative channels of communication
remain open to [the plaintiff] even if those channels may be less effective than
[the plaintiff] would prefer” (quotation omitted)).
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III
The foregoing demonstrates that Manchester City Ordinance § 96.04(A),
as applied to the defendants, is valid under Part I, Article 22 of our State
Constitution as a reasonable regulation of the time, place, and manner in
which the city’s parks may be used. Because the Federal Constitution offers
the defendants no greater protection than the State Constitution in these
circumstances, see Biondolillo, 164 N.H. at 376; McCullen, 134 S. Ct. at 2529,
we reach the same conclusion under a federal analysis.
Affirmed.
DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
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