100 A.3d 514
N.H.2014Background
- In October 2011, members of Occupy New Hampshire set up an overnight encampment with tents and committees in Manchester’s Veteran’s Park to protest economic and political grievances.
- Manchester police issued orders after 11:00 p.m. to enforce a city park curfew (11:00 p.m.–7:00 a.m.); defendants refused and were charged under Manchester Ordinance § 96.04.
- Defendants moved to dismiss, arguing enforcement infringed their free-speech rights under Part I, Article 22 of the New Hampshire Constitution and the First Amendment; the trial court denied the motion and found them guilty.
- On appeal, the Supreme Court of New Hampshire assumed (without deciding) the encampment was expressive conduct and treated Veteran’s Park as a traditional public forum.
- The court analyzed the curfew as a content-neutral time, place, and manner restriction and considered narrow tailoring and availability of alternative channels for expression.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether enforcing the curfew abridged protected speech | Curfew application suppressed expressive conduct (overnight occupation) and thus violated free speech | Occupation was symbolic expressive conduct necessary to message; curfew enforcement unconstitutionally limited it | Court assumed conduct was expressive but held enforcement did not violate Part I, Art. 22 or the First Amendment |
| Proper standard for review (state vs. federal) | New Hampshire protection should be broader; apply strict scrutiny | Standard for time/place/manner under state law aligns with federal intermediate standard | Court declined to apply heightened state scrutiny and used the same time/place/manner test as federal cases |
| Whether the ordinance is narrowly tailored (traditional public forum) | City should have made an exception given defendants’ precautions and minimal impact | City can apply a uniform curfew to protect public safety and park integrity; case-by-case exceptions risk arbitrary favoritism | Ordinance is narrowly tailored enough: serves significant interests and would be less effective without the curfew |
| Whether ample alternative channels remained | Continuous overnight presence was necessary to communicate the message; sidewalks not viable | Defendants could communicate during park hours and via other public fora; they are not entitled to their preferred means | Court held ample alternatives existed even if less effective; inability to camp overnight did not make restriction unconstitutional |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (1989) (conduct can be protected speech when imbued with communicative elements)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (prohibition on camping can be applied to demonstrations without violating the First Amendment)
- Int’l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (government need not permit all forms of speech on property it controls)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, and manner restrictions must be content-neutral, narrowly tailored to a significant interest, and leave open ample alternatives)
- McCullen v. Coakley, 573 U.S. 464 (2014) (same time/place/manner framework reiterated and applied to public forums)
- City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (government need not create exceptions to generally applicable restrictions even if some expressive uses are burdened)