Doyle v. Comm'r, N.H. Dep't of Res. & Econ. Dev.

• Decision Date: 13 January 2012
• Docket Number: No. 2011–420.,2011–420.
• Citation: 37 A.3d 343,163 N.H. 215
• Parties: Jonathan DOYLE v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT and another.
• Court: New Hampshire Supreme Court

163 N.H. 215

37 A.3d 343

Jonathan DOYLE

v.COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT and another.

No. 2011–420.

Supreme Court of New Hampshire.

Argued: Nov. 10, 2011.

Opinion Issued: Jan. 13, 2012.

NH Civil Liberties Union Foundation, of Concord (Barbara R. Keshen on the brief and orally), and Backus, Meyer and Branch, LLP, of Manchester (Jon Meyer on the brief), for the plaintiff.

Michael A. Delaney, attorney general (Matthew G. Mavrogeorge, assistant attorney general, on the brief and orally), for the defendants.

DUGGAN, J.

The plaintiff, Jonathan Doyle, appeals an order of the Superior Court (Smukler, J.) granting summary judgment to the defendants, the Commissioner of the New Hampshire Department of Resources and Economic Development and the Monadnock State Park Manager (collectively, DRED), and denying Doyle's motion for summary judgment. We reverse and remand.

The record supports the following facts. Mount Monadnock is a 3,165–foot mountain within Monadnock State Park, which is owned and managed by DRED. With 100–mile views to points in all six New England states, Mount Monadnock is said to be the second most climbed mountain in the world. Aside from hiking the mountain, visitors to Monadnock State Park may camp, picnic, Nordic ski and snowshoe. Mount Monadnock has been designated a National Natural Landmark.

On September 6, 2009, Doyle decided to film himself dressed as "Bigfoot" on Mount Monadnock. Bigfoot, also known as Sasquatch, is "a large, hairy humanlike creature believed by some persons to exist in the northwestern United States and western Canada." 10 The New Encyclopedia Britannica 464 (15th ed. 2010). "The British explorer David Thompson is sometimes credited with the first discovery (in 1811) of a set of Sasquatch footprints...." Id. Since then, "[v]isual sightings and even alleged photographs and filmings (notably by Roger Patterson at Bluff Creek, Calif., in 1967) have also contributed to the legend." Id. However, "most scientists do not recognize the creature's existence." Id.

To execute his planned filming of Bigfoot, Doyle purchased a costume resembling an ape and then climbed the mountain with his girlfriend. At the top, he put on the Bigfoot costume and filmed conversations he had with other hikers. After about twenty minutes, he removed the costume and descended the mountain. On his way down, he encountered two park staff members, and persuaded them to write a note saying there had been a "Bigfoot sighting" on the mountain. The staff members later said they were just playing along with what they thought was a college project. After leaving the park, Doyle went to both the local police station and State Police in Keene to tell them that there had been a Bigfoot sighting on Mount Monadnock.

Pleased that his Bigfoot hoax resulted in hikers "interacting, laughing, and coming together as a community," Doyle decided to stage another Bigfoot event on the mountain. To raise awareness of his next appearance, he had a friend interview him about the first event and write a press release, which Doyle gave to the Keene Sentinel. The newspaper printed a story that said Doyle would again climb the mountain dressed as Bigfoot. Doyle also promoted this upcoming appearance on his website.

On September 17, 2009, the Monadnock State Park Manager, Patrick Hummel, sent an email to his supervisor, Brian Warburton, informing him of Doyle's activities. Hummel said that Doyle "never ran anything by [him]." He expressed annoyance over the fact that newspapers had called him to ask whether the Bigfoot story was legitimate. He also told Warburton that the Bigfoot party would soon return, and because he believed they had "stepped over the line" he would intercept them prior to their ascent.

On September 19, 2009, Doyle and five others returned to Mount Monadnock to stage another Bigfoot filming. They hiked up to the Halfway House, a trail junction, and prepared to perform. Doyle and two of his friends remained in plain clothes, while the others dressed up as Bigfoot, Yoda and a pirate. Doyle filmed a few scenes and interviewed passing hikers. Additionally, several people stopped to watch them filming.

Shortly thereafter, Hummel approached Doyle and asked him whether he had a special-use permit. Doyle said he did not, and Hummel told him that he had to leave the mountain. Doyle and his friends complied.

Under New Hampshire Administrative Rule, Res 7306.01(a), a person must obtain a special-use permit to use DRED properties for "[h]olding organized or special events which go beyond routine recreational activities." To obtain a permit, the applicant must apply for the permit at least thirty days prior to the event, pay a $100 fee and obtain a $2,000,000 insurance policy that covers the State of New Hampshire. N.H. Admin. Rules, Res 7306.01 to .04. Once these requirements are met, DRED "shall approve [the] application." N.H. Admin. Rules, Res 7306.04(a).

Doyle subsequently brought a declaratory judgment action against DRED, arguing that Res 7306.01(a) violates the right to free speech contained in both Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. Doyle also sought a permanent injunction, nominal damages, costs and fees. The trial court granted summary judgment in favor of DRED, ruling that Doyle failed to show that Res 7306.01(a) "is unconstitutional either facially or as applied." On appeal, Doyle argues the trial court erred because Res 7306.01(a) is void for vagueness, overbroad on its face and not narrowly tailored, and also overbroad as applied to Doyle's small-scale project.

I. Analysis

Part I, Article 22 of our State Constitution 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 to the United States Constitution 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, 58 S.Ct. 666, 82 L.Ed. 949 (1938).

We first address Doyle's claims under our State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only. Id. at 232–33, 471 A.2d 347. We review the constitutionality of state regulations de novo. See N.H. Assoc. of Counties v. State of N.H., 158 N.H. 284, 288, 965 A.2d 1012 (2009).

The speech at issue here is unquestionably protected under our State Constitution. Even though Doyle's activities may have been nothing more than a playful hoax, "[w]holly neutral futilities ... come under the protection of free speech as fully as do Keats' poems or Donne's sermons." United States v. Stevens, 559 U.S. 460, ––––, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) (quotation omitted; alterations in original). Only narrow categories of speech, such as defamation, incitement and pornography produced with real children, fall outside the ambit of the right to free speech. See State v. Zidel, 156 N.H. 684, 686, 940 A.2d 255 (2008). Furthermore, expression by means of motion pictures—which this plainly was—is protected speech, State v. Theriault, 158 N.H. 123, 127, 960 A.2d 687 (2008), as is performance art, see Schad v. Mount Ephraim, 452 U.S. 61, 65–66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). We must, therefore, determine whether the permit scheme regulating Doyle's speech violates the right to free speech.

We first address Doyle's facial challenge. See State v. Hynes, 159 N.H. 187, 200, 978 A.2d 264 (2009). To prevail, Doyle must either establish: (1) that no set of circumstances exists under which Res 7306.01(a) would be valid; or (2) that Res. 7306.01(a) is overbroad in that "a substantial number of its applications are unconstitutional, judged in relation to the [regulation's] plainly legitimate sweep." Stevens, 130 S.Ct. at 1587. Doyle focuses his challenge on the latter, overbreadth, and we thus limit our discussion accordingly.

To determine whether a substantial number of a regulation's applications are unconstitutional, we must scrutinize it under the applicable constitutional standard. As the Supreme Court has explained, "the standards by which limitations on speech must be evaluated differ depending on the character of the property." Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (quotation omitted). Thus, at the outset, we must analyze the character of the government property at issue.

Government property generally falls into three categories—traditional public forums, designated public forums and limited public forums. Pleasant Grove City v. Summum, 555 U.S. 460, 469–70, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). A traditional public forum is government property "which by long tradition or by government fiat [has] been devoted to assembly and debate." Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (quotation omitted). In such forums, the government may impose reasonable time, place and manner restrictions. Summum, 555 U.S. at 469, 129 S.Ct. 1125. If a restriction is content-based, it must be narrowly tailored to serve a compelling government interest. Id. If a restriction is content-neutral, it must satisfy a slightly less stringent test—it must be narrowly tailored to serve a significant government interest. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Content-neutral restrictions, however, must also leave open ample alternative channels for communication. Id.

A designated public forum is government property "that the State has opened for expressive activity by part or all of the public." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). Regulations of speech...