City of Keene v. James Cleaveland & a.
167 N.H. 731
N.H.2015Background
- City of Keene employed parking enforcement officers (PEOs) who patrol downtown and issue parking tickets; beginning in Dec. 2012, respondents (private citizens) repeatedly followed PEOs, videotaped them, placed money in expired meters to prevent tickets (“saves”), and left protest cards on windshields.
- Respondents also used derogatory speech toward PEOs, waited near them (including near restrooms and during breaks), and in one instance a respondent grabbed a PEO’s wrist; PEOs testified the conduct caused anxiety, safety concerns, and at least one resignation.
- City sued seeking (1) tortious interference with contractual relations, civil conspiracy, and negligence (money damages), and (2) preliminary and permanent injunctive relief prohibiting certain proximity, recording, and harassing conduct around on-duty PEOs.
- Trial court held a three-day evidentiary hearing, dismissed the City’s tort claims as barred by the First Amendment (finding respondents’ conduct related to matters of public concern in a public forum), and denied injunctions given the dismissal.
- New Hampshire Supreme Court affirmed dismissal of tortious interference, conspiracy, and negligence claims on First Amendment grounds, but vacated the denial of injunctive relief and remanded for the trial court to consider, in the first instance, whether narrowly tailored, content-neutral injunctions addressing safety/workplace interests are warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tortious interference and related tort claims can proceed despite respondents’ protest conduct | City: respondents’ close-following, filming at close range, yelling, lingering at breaks, and similar conduct is "improper" interference not protected by the First Amendment and may be adjudicated by a jury | Respondents: their speech and expressive conduct (including nonviolent, close-proximity acts) concern public matters in a public forum and are protected; tort liability would unconstitutionally chill speech | Court: First Amendment bars tort liability for the challenged nonviolent protest and expressive conduct; affirmed dismissal of tortious interference and conspiracy claims |
| Whether negligence claim should continue | City: negligence claim addresses safety risks caused by respondents’ conduct | Respondents: First Amendment and insufficient legal basis | Court: City failed to develop negligence argument on appeal; dismissal affirmed (not substantively reviewed) |
| Whether trial court erred in denying injunctive relief after dismissing tort claims | City: even if tort claims are barred, City’s significant governmental interests (public safety and safe workplace) can justify narrowly tailored, content-neutral injunctive relief that restricts time/place/manner of conduct | Respondents: denial proper because underlying torts dismissed; injunction would chill speech and lack statutory/criminal support | Court: Trial court erred by denying injunction solely because it dismissed tort claims; vacated that part and remanded for consideration of narrowly tailored, content-neutral injunctions balancing free speech and safety/workplace interests |
| Standard for restricting protest activity in public forums | City: seeks trial court to balance governmental interests against speech and allow specific restraints (e.g., 15-30 ft safety zone for harassing conduct) | Respondents: restrictions would burden core First Amendment activity and must be narrowly tailored; alternative time/place/manner rules apply | Court: Confirmed that even protected speech may be subject to reasonable time/place/manner restrictions; injunctions, if issued, must be content-neutral and burden no more speech than necessary (remanded to trial court to evaluate facts and craft relief) |
Key Cases Cited
- Snyder v. Phelps, 131 S. Ct. 1207 (U.S. 2011) (speech on public issues in public forums receives strong First Amendment protection; tort liability may be barred)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (U.S. 1982) (nonviolent political protest that causes economic harm is protected; damages for such activity are limited)
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (private citizen has First Amendment right to record public officials in public places)
- Organization for a Better Austin v. Keefe, 402 U.S. 415 (U.S. 1971) (peaceful distribution of leaflets about controversial issues is protected)
- Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (U.S. 1994) (injunctions that restrict protest speech must be content-neutral and narrowly tailored to serve significant governmental interests)
- Coplin v. Fairfield Public Access Television, 111 F.3d 1395 (8th Cir. 1997) (state tort definitions do not automatically avoid First Amendment limits; courts must assess constitutional protection)