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Bar News - May 20, 2015

Section Connection: Section Recap: Governments and Freedom of Speech


From left: Peg O’Brien, chair of the NHBA Labor & Employment Law Section, poses with Magistrate Judge Johnstone, who was honored at the April 10 reception, and Debra Dyleski-Najjar, a section member.
Whether granting a permit for use of public property, keeping order at a meeting, issuing a license to a vendor, or regulating any of a host of activities in the “public square,” municipalities often find themselves defending local regulations from claims that they violate freedom of speech or expression.

In spite of the valid intent of regulations to protect public health, safety and welfare, these regulations often inhabit a gray area, with even the most well-intentioned regulation being challenged as violating constitutional guarantees, especially regarding freedom of speech and expression.

The April 15 meeting of the NH Bar Association Municipal & Governmental Law Section hosted Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, and Keene City Attorney Thomas Mullins as panelists for a continuing legal education session on the intersection of regulation and freedom of speech and expression.

Bissonnette presented the ACLU’s position on various types of regulations, such as permits for demonstrations, canvassing and soliciting, panhandling, speech at public meetings and criminal no-trespass orders, and where such regulations may impermissibly intrude into constitutionally protected rights. Bissonnette detailed the analysis required to determine the constitutionality of a regulation, demonstrating the required analysis with both state and federal case law.

Mullins outlined the practical application of constitutional analysis to the drafting and enforcement of the City of Keene’s current permitting regulations and use of public property, and referenced several Circuit and Superior Court decisions in matters where Keene’s regulations had been challenged.

Bissonnette and Mullins concurred that these challenges are always very fact-intensive and the law is likely to continue to be unsettled. In other words, practitioners were advised to stay tuned to both the New Hampshire and the United States Supreme Courts for pending decisions in several freedom of speech and expression cases argued in recent months.

The recording and materials from the meeting are now available to all NH Bar members as a NH Bar CLE program and can be found in the online CLE catalog.

The NHBA Municipal & Government Law Section is scheduled to meet again Wednesday, May 20, at the NH Municipal Association in Concord for a presentation on workforce housing and section officer elections.

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