City of Keene v. James Cleaveland & a.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Cheshire
No. 2013-885
CITY OF KEENE
v.
JAMES CLEAVELAND & a.
Argued: October15, 2014
Opinion Issued: June 9, 2015
Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and
Robert J. Dietel on the brief, and Mr. Bauer orally), for the petitioner.
Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief
and orally), for respondents James Cleaveland, Garrett Ean, Kate Ager, Ian
Bernard a/k/a Ian Freeman, and Graham Colson.
Respondent Pete Eyre, for himself, filed no brief.
Nixon Peabody LLP, of Manchester (Anthony J. Galdieri on the brief), and
New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the
brief), for New Hampshire Civil Liberties Union, as amicus curiae.
New Hampshire Municipal Association, of Concord (Stephen C. Buckley,
on the brief and orally) as amicus curiae.
BASSETT, J. The petitioner, the City of Keene, appeals an order of the
Superior Court (Kissinger, J.) dismissing its claims of tortious interference with
contractual relations, negligence, and civil conspiracy, and denying its request
for preliminary and permanent injunctive relief. The City filed suit against the
respondents, James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a
Ian Freeman, Graham Colson, and Pete Eyre, because they followed closely
behind the City’s parking enforcement officers (PEOs) on their daily patrols
through downtown Keene, videotaping them, criticizing their work, and putting
money into expired parking meters before a parking ticket was issued. After an
evidentiary hearing, the trial court dismissed the action, ruling that the City’s
claims were barred by the First Amendment to the United States Constitution.
U.S. CONST. amend. I. The trial court also denied the City’s petition for
preliminary and permanent injunctive relief. We affirm in part, vacate in part,
and remand.
I
The following facts are drawn from the City’s pleadings, or were adduced
at the evidentiary hearing. The City employs PEOs to enforce motor vehicle
parking laws and regulations in Keene. The PEOs patrol downtown Keene on
foot and in marked vehicles, monitoring parking meters and issuing parking
tickets. In December 2012, the respondents began protesting parking
enforcement in Keene. On an almost daily basis, the respondents followed
closely behind the PEOs, identifying expired parking meters and filling the
meter before a PEO could issue a ticket, a process referred to by the
respondents as a “save.” When the respondents “save” a vehicle, they leave a
card on the vehicle’s windshield that reads: “Your meter expired! However, we
saved you from the king’s tariff!” The respondents also: videotaped the PEOs
from a close proximity; called the PEOs names such as “f*****g thief,” “coward,”
“racist,” and “b***h”; criticized the PEOs for issuing tickets; encouraged the
PEOs to quit their jobs; and waited for the PEOs during their breaks, including
waiting outside restrooms. The respondents testified that they engage in these
activities to protest parking enforcement because they believe that parking is
not a criminal act, and that parking tickets are a “threat against [the] people.”
The PEOs testified that they repeatedly asked the respondents to stop their
activities, complained to the Keene police department, and reported the
respondents’ activities to the city attorney.
In 2013, the City petitioned for preliminary and permanent injunctive
relief, alleging tortious interference with contractual relations and civil
2
conspiracy to commit tortious interference.1 The City asserted that the
respondents, acting individually and in concert, tortiously interfered with the
City’s contractual relations with the PEOs by engaging in persistent and
ongoing efforts to prevent them from performing their official duties, thus
creating a hostile work environment for the PEOs. The City sought to enjoin
the “Respondents, or anyone under their direction, supervision, employment,
or control” from “coming within,” “video recording,” or “communicating with
any PEO” within “a safety zone of fifty (50) feet of any PEO while that PEO is on
duty performing his or her employment duties as required by the City of
Keene.” The City did not seek to prevent the respondents from filling meters.
The petition contained the following statement:
[The City] does not seek an Order to prevent Respondents from
exercising their constitutional rights to video record the PEOs from
a comfortable remove or otherwise to express their opinion; rather,
[the City] seeks only to prevent Respondents from taunting,
interfering with, harassing, and intimidating the PEOs by
establishing a safety zone between the PEOs and [the] Respondents
while the PEOs are performing their duties.
The respondents filed a motion to dismiss, arguing that the City’s
petition failed to state a claim for tortious interference, and that the claim
violated their right to free speech under the First Amendment of the Federal
Constitution and Part I, Article 22 of the New Hampshire Constitution, as well
as their right to government accountability under Part I, Article 8 of the New
Hampshire Constitution. See U.S. CONST. amend. I; N.H. CONST. pt. I, arts.
8, 22.
Shortly thereafter, the City filed a separate civil complaint against the
respondents, requesting a jury trial and seeking money damages for injuries
sustained by the City because of the respondents’ tortious interference with
contractual relations and negligence. These claims were based upon the same
factual allegations as those set forth in the City’s petition for injunctive relief.
The trial court held a three-day evidentiary hearing and heard legal
argument on both the City’s petition for preliminary injunctive relief and the
respondents’ motion to dismiss. The PEOs testified that the close proximity of
the respondents — sometimes only a foot away from them — caused the PEOs
anxiety and made them feel harassed. One PEO testified that he was
1 The City’s original petition for injunctive relief, filed in May 2013, alleged only tortious
interference with contractual relations. In July 2013, the City filed a motion to amend its petition
to add a claim of civil conspiracy. It appears that the trial court had not ruled on the City’s
motion to amend at the time of the evidentiary hearing. However, because the trial court order
identifies civil conspiracy as one of the claims filed against the respondents, we construe the order
as having implicitly granted the City’s motion to amend and briefly address this claim in this
opinion.
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sometimes followed on his patrols by two or three of the respondents at the
same time, and that they followed him so closely that if he turned around, they
would bump into him. He ultimately resigned because “the constant
harassment and intimidation [had] started to boil over into [his] personal life
and [his] time off,” and he felt he was “backed into a corner.” Another PEO
testified that she is “tense and uptight all the time” because of the “awful
anticipation” of “waiting for [the respondents] to show up,” and claimed that
she is unable to do her job because she is “trying to avoid [the respondents].”
A third, who complained that the respondents waited outside her car and
followed her in and out of city buildings on her breaks, testified that she does
not feel safe when the respondents follow her at work. She also testified that,
on one occasion, one of the respondents grabbed her wrist when she attempted
to remove one of the respondents’ cards from a car windshield. She has
changed her work schedule to avoid the respondents, and has considered
quitting her job. The City also offered testimony about the risk to public safety:
specifically, that the respondents distract the PEOs as they drive on city
streets, and that the respondents “dart[ ] across” the street, which the City
asserted could result in pedestrian injuries or vehicle collisions.
Several of the respondents testified as well. Cleaveland stated that an
injunction requiring the respondents to stay away from the PEOs would be a
“considerable infringement” on the respondents’ ability to get their message to
the public, and might create an antagonistic environment by requiring the
respondents to raise their voices to be heard. The respondents also asserted
that distances between five and fifteen feet away from the PEOs were “ideal” for
their activities, and that videotaping required closer proximity to the PEOs than
filling meters.
During the course of the hearing, the City narrowed its request for
injunctive relief. First, rather than seeking the originally requested injunction
that would bar the respondents “from coming within” 50 feet of any on-duty
PEO, it modified its request, asking that the respondents be prohibited from
engaging in “touching, taunting, obstructing, detaining, hindering, impeding,
blocking, [and] intimidating or harassing” conduct within a 30-foot “safety
zone” around the PEOs. The City explained that it was not seeking to enjoin
the respondents from merely “being within the proximity of the officers”; rather,
it was seeking to prohibit the respondents from being “in their proximity and
engag[ing] in the behavior” alleged. (Emphasis added.) Next, at the close of the
hearing, the City again narrowed its requested relief, asking the trial court to
order a “safety zone” around an on-duty PEO of 15 feet — approximately the
distance between two parking meters — or “any other reasonable injunction
that the Court deems appropriate.” The City emphasized that it did not seek to
restrict the content of the respondents’ speech, and acknowledged to the trial
court that they had constitutionally protected rights to “videotape,” “have
discourse,” and “get their message out” as long as they did so from “a
reasonable distance back.” See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir.
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2011) (“The filming of government officials engaged in their duties in a public
place . . . fits comfortably within [First Amendment] principles.”). The City
sought to restrict only those aspects of the respondents’ conduct that were
interfering with the PEOs’ ability to perform their jobs.
The trial court granted the respondents’ motion to dismiss. After
expressing skepticism as to the viability of the City’s tortious interference claim
under these circumstances, the trial court concluded that it “need not reach
this issue as the enforcement of [the tortious interference claim] is an
infringement [up]on the Respondents’ right to free speech and expression
under the First Amendment of the Federal Constitution.”
Relying upon Snyder v. Phelps, 131 S. Ct. 1207, 1215-19 (2011), the trial
court analyzed the respondents’ actions and concluded that their speech and
expressive activities involved a matter of public concern and occurred in a
traditional public forum — the streets and sidewalks of Keene — and,
therefore, were “entitled to special protection” under the First Amendment.
Snyder, 131 S. Ct. at 1219. The trial court explained that the First
Amendment protects “sharing common views,” “peaceful pamphleteering,” and
the videotaping of government officials, and noted that “[m]erely because many
people disagree with the Respondents as to the role of parking enforcement in
Keene does not subject their speech and expressive conduct to lesser
protections.” The trial court observed that, although the City could lawfully
impose reasonable time, place, and manner restrictions on the respondents’
activities, imposing liability for tortious interference would:
unreasonably prevent the Respondents[ ] from exercising their
right to free speech. . . . [W]hether a tortious interference claim
exists depends on whether a jury finds the Respondents’ conduct
“improper.” Such a subjective standard creates an unreasonable
risk that the jury will find liability on the basis of the jurors’ tastes
or views, or perhaps on the basis of their dislike of a particular
expression.
(Quotations and citations omitted.) The court also denied the City’s request for
injunctive relief, reasoning that neither a temporary nor permanent injunction
was warranted “[g]iven the dismissal of the tortious interference claim.” This
appeal followed.
II
The City first argues that the trial court erred when it dismissed the
City’s tortious interference, civil conspiracy, and negligence claims. Although
the City acknowledges on appeal that the content of the respondents’ speech is
constitutionally protected, and that the respondents have a constitutionally
protected right to videotape the PEOs, it argues that the respondents’ actions
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— “following closely, chasing, running after, approaching quickly from behind,
lurking outside bathrooms, yelling loudly, and filming from close proximity” —
constitute “improper” interference with the PEOs’ employment duties. The City
contends that this conduct is “significantly harassing behavior under the guise
of political expression,” and, therefore, not constitutionally protected. The City
asserts, therefore, that a jury may impose tort liability without
unconstitutionally burdening the respondents’ right to free speech. The
respondents counter that the trial court correctly ruled that it would violate the
First Amendment to allow the City’s civil claims to proceed to a jury. These
arguments present a question of constitutional law; therefore, we review the
trial court’s analysis de novo. State v. Bailey, 166 N.H. 537, 540 (2014).
Although we normally address constitutional questions first under the State
Constitution and rely on federal law only to aid in our analysis, see State v.
Ball, 124 N.H. 226, 231-33 (1983), because the trial court ruled that the
respondents’ activities were protected under the Federal Constitution and did
not address the respondents’ arguments under the State Constitution, we first
address the parties’ arguments under the Federal Constitution.
To establish liability for tortious interference with contractual relations, a
plaintiff must show that: “(1) the plaintiff had an economic relationship with a
third party; (2) the defendant knew of this relationship; (3) the defendant
intentionally and improperly interfered with this relationship; and (4) the
plaintiff was damaged by such interference.” Hughes v. N.H. Div. of
Aeronautics, 152 N.H. 30, 40-41 (2005) (emphases omitted). Whether the
alleged conduct is “improper” requires an “inquiry into the mental and moral
character of the defendant’s conduct.” Brownsville Golden Age Nursing Home,
Inc. v. Wells, 839 F.2d 155, 159 (3d Cir. 1988) (quotation omitted). “Action is
not improper when the interference in contractual relations fosters a social
interest of greater public import than is the social interest invaded.” Id.
(quotation omitted); see Restatement (Second) of Torts § 766 cmt. c at 10
(1965) (“The issue is whether in the given circumstances [the defendant’s]
interest and the social interest in allowing the freedom claimed by him are
sufficient to outweigh the harm that his conduct is designed to produce.”).
Initially, we note that we share the trial court’s skepticism as to whether
a tortious interference claim can exist when private citizens engage in protest of
the government. However, we need not decide whether a viable tortious
interference claim can exist under the circumstances present in this case
because we agree with the trial court that holding the respondents liable for
tortious interference based upon their alleged activities would infringe upon the
respondents’ right to free speech under the First Amendment.
“The Free Speech Clause of the First Amendment — ‘Congress shall
make no law . . . abridging the freedom of speech’ — can serve as a defense in
state tort suits . . . .” Snyder, 131 S. Ct. at 1215. “[S]peech constituting a
state-law tort is not necessarily unprotected speech,” and, as the United States
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Supreme Court has made clear, “states may not regulate speech merely
because the speech is defined as a state-law tort.” Coplin v. Fairfield Public
Access Television, 111 F.3d 1395, 1401 n.2 (8th Cir. 1997). That is why the
First Amendment bars certain state tort claims. See Snyder, 131 S. Ct. at
1220 (holding that First Amendment bars claims of intentional infliction of
emotional distress, intrusion upon seclusion, and civil conspiracy against non-
violent funeral protestors).
Whether speech is constitutionally protected requires an analysis of
whether the “speech is of public or private concern, as determined by all the
circumstances of the case,” including whether the challenged activities take
place in a traditional public forum. Id. at 1215. “Speech deals with matters of
public concern when it can be fairly considered as relating to any matter of
political, social, or other concern to the community . . . .” Id. at 1216. Speech
on matters of public concern “is at the heart of the First Amendment’s
protection.” Id. at 1215 (quotation omitted). “That is because speech
concerning public affairs is more than self-expression; it is the essence of self-
government.” Id. “Deciding whether speech is of public or private concern
requires us to examine the content, form, and context of that speech, as
revealed by the whole record.” Id. at 1216 (quotations omitted). “In
considering content, form, and context, no factor is dispositive, and it is
necessary to evaluate all the circumstances of the speech, including what was
said, where it was said, and how it was said.” Id.
On appeal, the City does not challenge the trial court’s conclusions that
the content of the respondents’ speech is protected by the First Amendment
because it relates to a matter of public concern, and that the respondents’
activities take place in a traditional public forum — the sidewalks and streets
of Keene. As the trial court observed, the respondents’ speech — criticizing the
PEOs for enforcing parking regulations and questioning the City’s authority to
regulate parking — plainly relates to issues of public concern because it
involves challenging “the political authority of the City.” Although certain
aspects of the respondents’ speech — such as referring to the PEOs in a
derogatory fashion — may “fall short of refined social or political commentary,
the issues they highlight . . . are matters of public import.” Id. at 1217.
Indeed, the Supreme Court has concluded that the content of protected speech
“cannot be restricted simply because it is upsetting or arouses contempt.” Id.
at 1219.
The City nonetheless asserts that specific aspects of the respondents’
conduct — “following closely, chasing, running after, approaching quickly from
behind, lurking outside bathrooms, yelling loudly, and filming from close
proximity” — are not protected by the First Amendment. The City contends
that this particular conduct — the lawfulness of which it continues to
challenge, and which, for the purpose of clarity, we will refer to as the
“challenged conduct” — has a tortious impact on the PEOs, and it would not
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violate the First Amendment either for a jury to adjudicate the City’s claims, or
for the trial court to potentially subject the respondents to tort liability for the
challenged conduct. The respondents counter that “[e]ven those activities that
did not involve speech [are] expressive conduct entitled to First Amendment
protection,” and, therefore, are insulated from tort liability. They assert that,
“absent acts of significant violence,” the First Amendment protects their non-
verbal acts from tort liability. We agree with the respondents.
As the Supreme Court has observed, “the presence of activity protected
by the First Amendment imposes restraints on the grounds that may give rise
to damages liability.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916-17
(1982). For instance, the First Amendment protects the right of individuals to
engage in public protest for the purpose of influencing societal or governmental
change, even if that protest activity causes economic harm. See id. at 916; see
also State of Mo. v. Nat. Organization for Women, 620 F.2d 1301, 1317 (8th
Cir. 1980) (“[T]he right to petition is of such importance that it is not an
improper interference even when exercised by way of a boycott.”). Further,
“[w]hile the State legitimately may impose damages for the consequences of
violent conduct, it may not award compensation for the consequences of
nonviolent, protected activity.” Claiborne Hardware Co., 458 U.S. at 918. The
First Amendment is implicated because the mere threat of tort liability for
engaging in protected activity may undermine “the free and robust debate of
public issues,” and “pose the risk of a reaction of self-censorship on matters of
public import.” Snyder, 131 S. Ct. at 1215-16 (quotations omitted); cf.
Claiborne Hardware Co., 458 U.S. at 931-32 (“The rights of political association
are fragile enough without adding the additional threat of destruction by
lawsuit.” (quotation omitted)).
In Claiborne Hardware Co., a group of merchants sought damages in tort
for malicious interference with their businesses — a tort analogous to the
tortious interference claim made in this case — after civil rights activists
organized a boycott of their businesses. Id. at 889-91. The protesters engaged
in a pattern of “intimidation, threats, social ostracism, [and] vilification” of
potential black customers to discourage them from patronizing the boycotted
establishments. Id. at 894. Some of the protesters committed violent acts. Id.
at 916. The Supreme Court concluded that the “use of speeches, marches, and
threats of social ostracism cannot provide the basis for a damages award.” Id.
at 933; see also Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971) (allowing organization to hand out leaflets about “practices [that] were
offensive to them” because “so long as the means are peaceful, the
communication need not meet standards of acceptability”). The Court further
held that although violent conduct “is beyond the pale of constitutional
protection,” because violence did not “color[ ] the entire collective effort,” the
protesters’ non-violent activity was constitutionally protected and not subject
to tort liability. Claiborne Hardware Co., 458 U.S. at 933.
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Here, the challenged conduct, like the respondents’ protected speech, is
intended to draw attention to the City’s parking enforcement operations and to
persuade the PEOs to leave their positions. There is no allegation that the
challenged conduct involves violent conduct. See id. at 918. Moreover,
conduct “does not lose its protected character . . . simply because it may
embarrass others or coerce them into action.” Id. at 910. We hold, therefore,
that the First Amendment shields the respondents from tort liability for the
challenged conduct. Id. at 933. Accordingly, we conclude that the trial court
correctly determined that enforcing the City’s tortious interference with
contractual relations claim would violate the respondents’ First Amendment
rights. Given this conclusion, we need not reach the respondents’ argument
that the tortious interference claim is also barred by the State Constitution.
Because we hold that the First Amendment bars the City from pursuing
its claim for tortious interference with contractual relations, we also conclude
that the First Amendment bars the City from pursuing its claim that the
respondents are liable for conspiring to commit the very same tort. See
Snyder, 131 S. Ct. at 1220.
The City also argues that the trial court erred when it dismissed the
City’s negligence claim. However, the City has failed to develop this argument
sufficiently for our review. See Auger v. Town of Strafford, 156 N.H. 64, 68
(2007). Therefore, we affirm the trial court’s dismissal of the City’s claims of
tortious interference with contractual relations, civil conspiracy, and
negligence.
III
The City next argues that the trial court erred when it denied the City’s
request for preliminary and permanent injunctive relief. The City contends
that the trial court erred when it failed to balance the City’s “significant
governmental interests” — preserving public safety and providing a safe
workplace for its employees — against the respondents’ right to free speech
before it ruled on the City’s request for injunctive relief. The City further
asserts that “[t]hese interests provide permissible grounds to grant an
injunction,” and, therefore, notwithstanding the trial court’s dismissal of the
tortious interference claim, the trial court should have issued an injunction
because of the impact of the challenged conduct upon the City’s interests in
preserving public safety and protecting the PEOs. The respondents counter
that the trial court properly denied an injunction “[g]iven the dismissal of the
tortious interference claim,” and that injunctive relief is not warranted because
the City has not pleaded that the challenged conduct violates a city ordinance
or any civil or criminal law. The respondents further contend that the
requested injunctive relief would violate their First Amendment rights. The
City responds that a municipal ordinance would “run a greater risk of chilling
First Amendment rights than a narrowly tailored injunction targeting specific
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misconduct by specific individuals.” The question before us, therefore, is
whether the trial court erred when, solely because it had dismissed the
underlying tortious interference claim, it denied the City’s request for
injunctive relief without considering the particular circumstances of the case.
As a threshold matter, we address the respondents’ argument that the
issue of whether the trial court erred when it denied the City’s request for
injunctive relief was “not stated as a question presented in [the City’s] notice of
appeal, and is accordingly improper pursuant to Rule 16(b) of this Court.” See
Sup. Ct. R. 16(3)(b). Supreme Court Rule 16(3)(b) provides, in relevant part:
While the statement of a question [in a brief] need not be worded
exactly as it was in the appeal document, the question presented
shall be the same as the question previously set forth in the
appeal document. The statement of a question presented will be
deemed to include every subsidiary question fairly comprised
therein.
Id. The City’s notice of appeal presented the question of “whether the [trial]
court erred in failing to balance the public employees’ right to work without
substantial interference, harassment, and intimidation against the private
parties’ right[ ] to protest governmental operations[.]” We conclude that the
question presented by the City in its notice of appeal fairly encompasses the
injunction issue before us. See Axenics, Inc. v. Turner Constr. Co., 164 N.H.
659, 668 (2013).
“It is within the trial court’s sound discretion to grant an injunction after
consideration of the facts and established principles of equity.” Town of
Atkinson v. Malborn Realty Trust, 164 N.H. 62, 66 (2012). The decision to
grant equitable relief “necessarily depends upon the factual circumstances in
each case.” Exeter Realty Co. v. Buck, 104 N.H. 199, 200 (1962). “[B]ecause
the division line between equity and law is not precise . . . courts have
considerable discretion in determining whether equity should intervene to aid
litigants in the protection of their legal rights.” Sands v. Stevens, 121 N.H.
1008, 1011 (1981) (quotation omitted). We will uphold the decision of the trial
court with regard to the issuance of an injunction absent an error of law, an
unsustainable exercise of discretion, or clearly erroneous findings of fact.
Town of Atkinson, 164 N.H. at 66.
Here, the trial court did not consider the factual circumstances of the
case prior to making its determination as to whether injunctive relief was
warranted. Although the City expressly pleaded only two underlying claims in
its petition for injunctive relief — tortious interference with contractual
relations and civil conspiracy — the City also specifically alleged that: (1) the
PEOs “felt intimidated and harassed and have been unable to perform their job
duties”; (2) the respondents act “with the purpose and intention of preventing
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the PEOs from doing their jobs”; (3) the respondents “frequently follow and
surround individual PEOs in groups of one, two, or more, an inherently
intimidating act;” (4) the respondents “place the PEOs and the public in
danger, both by their distracting behavior and also as a result of their
disregard for rules of the road”; and (5) the challenged conduct “agitates the
public, often creating hostile exchanges between members of the public and
[the] Respondents that place the PEOs, the public, and the Respondents in
danger,” resulting, on one occasion, in a “physical altercation between
Respondent Cleaveland and a member of the public.”
The City has consistently argued that, even if the tortious interference
claim is dismissed, it is entitled to equitable relief based upon its “significant
governmental interests” in “providing a safe workplace for its employees” and
“preserving public safety and order.” The trial court disagreed, and denied the
City’s request for injunctive relief “[g]iven the dismissal of the tortious
interference claim.” We hold that the trial court erred when, solely because it
had dismissed the underlying tortious interference claim, it denied injunctive
relief without considering all the factual circumstances of the case.
Although the City’s petition could perhaps have been drafted with more
precision, New Hampshire is a notice pleading jurisdiction, and, “[a]s such, we
take a liberal approach to the technical requirements of pleadings.” Porter v.
City of Manchester, 151 N.H. 30, 43 (2004) (quotation omitted). That the City
did not set forth its factual allegations and legal theories as a separate count
seeking injunctive relief is not fatal to its request; nor does it constrain the trial
court in undertaking an inquiry as to whether the specific circumstances of the
case warrant equitable relief. See 27A Am. Jur. 2d Equity § 2 (2008) (stating
that court sitting in equity is “less hampered by technical difficulties” and “is
not shackled by rigid rules of procedure”).
In light of the City’s allegations that the challenged conduct threatens
the safety of the PEOs, pedestrians, and the motoring public, and given the
testimony of the PEOs at the hearing, we hold that the trial court erred when it
failed to consider the particular factual circumstances of the case and whether
an injunction should issue based upon the governmental and policy interests
asserted by the City. See Murray v. Lawson, 649 A.2d 1253, 1263 (N.J. 1994)
(granting injunction “pursuant to the court’s authority to grant equitable relief
to enforce a valid public policy of [the] State”); cf. RSA 642:1, I (2007) (making
it unlawful to use “intimidation . . . or engage[ ] in any other unlawful conduct
with a purpose to hinder or interfere with a public servant”). Accordingly, we
vacate the trial court’s denial of the City’s request for injunctive relief, and
remand for the trial court to address the issue of whether the governmental
interests and factual circumstances asserted by the City in its petition are
sufficient to warrant properly tailored injunctive relief.
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“Even protected speech is not equally permissible in all places and at all
times.” Snyder, 131 S. Ct. at 1218 (quotation and brackets omitted). The
respondents’ choice of where and when to engage in the challenged conduct “is
not beyond the Government’s regulatory reach — it is subject to reasonable
time, place, or manner restrictions.” Id. (quotation omitted); see Bailey, 166
N.H. at 542 (observing that “[f]ederal precedent employs the same standard [as
we employ under our constitution] to assess the constitutionality of restrictions
on the time, place, and manner of expressive activities taking place in a public
forum.” (quotation omitted)). We note that content-neutral injunctions that
restrict speech or expressive activities must “burden no more speech than
necessary to serve a significant government interest” to survive a First
Amendment challenge. Madsen v. Women’s Health Center, Inc., 512 U.S. 753,
765 (1994). We express no opinion as to whether the City’s allegations, if
proven, are sufficient to warrant the trial court’s exercise of its equitable power,
or as to whether the particular injunctive relief requested by the City would
violate the Federal or State Constitutions. Those are issues for the trial court
to address in the first instance.
Affirmed in part; vacated
in part; and remanded.
DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
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