State v. Bailey

Decision Date08 August 2014
Docket NumberNo. 2012–781,2012–781
Citation166 N.H. 537,100 A.3d 514
Parties The STATE of New Hampshire v. Catherine BAILEY & a.
CourtNew Hampshire Supreme Court

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney general, on the brief and orally), for the State.

NH Civil Liberties Foundation, of Concord (Barbara R. Keshen on the brief), and Nixon, Vogelman, Barry, Slawsky & Simoneau, PA, of Manchester (Lawrence A. Vogelman orally), for the defendants.


The defendants, Catherine Bailey, Rhylan Bruss, Benjamin DiZoglio, Elizabeth Edwards, Elizabeth Grunewald, Charlene Higgins, William Hopkins, Michael Joseph, Brian Kelly, Matthew Lawrence, Keith Martin, Christian Pannapacker, Tara Powell, Matthew Richards, Katheryn Talbert, and Leah Wolczko, appeal a ruling of the Circuit Court (Lyons, J.) that they violated a City of Manchester ordinance establishing a park curfew of 11:00 p.m. to 7:00 a.m. See Manchester, N.H., Code of Ordinances § 96.04 (2010); RSA 47:17 (2012). The defendants argue that this ruling amounts to an unconstitutional infringement of their free speech rights. We affirm.


The following facts are drawn from the trial court order on the defendants' motion to dismiss or are otherwise supported by the record. In October 2011, the defendants were participating in a movement known nationally as Occupy Wall Street. They participated in the movement in Manchester, operating under the name Occupy New Hampshire. One defendant explained that "[o]ccupy is a tactic. Occupy means staying in one place until your grievances are addressed." The individual participants in Occupy New Hampshire had a broad range of grievances or issues, including ending the involvement of the United States in foreign wars, eliminating the Federal Reserve, limiting the influence of money on elected officials, protesting the lack of jobs, challenging bank bailouts, and eliminating inequality in the distribution of wealth.

On October 15, more than 300 Occupy New Hampshire participants met at Veteran's Park, a city park in Manchester. Because the participants learned that the police were holding a benefit at Veteran's Park, they began their "occupation" in Victory Park instead. Approximately forty people stayed overnight in ten to fifteen tents. Prior to meeting at the park, the participants had formed several committees to manage the group, including a safety committee responsible for cleaning the park and mediating disagreements, and a logistics committee responsible for addressing the participants' needs relating to such items as food, tents, and clothing. They set up portable toilets and arranged for participants to shower in nearby homes. The group also established policies prohibiting littering and the use of drugs and alcohol. The police conveyed one noise complaint to the group due to drumming, after which the participants established internal rules for when they would use drums.

Two days later, the participants relocated to Veteran's Park, where twenty-five to thirty people in approximately ten tents occupied less than twenty percent of the park. As in Victory Park, they set up portable toilets, and designated tents for the various committees. The participants intended to remain encamped until their grievances were heard.

On October 19, shortly after 11 p.m., the Manchester police told the people present in the park that the police would enforce the park curfew ordinance and asked those present to leave. The defendants declined to do so and received summonses for violating Manchester City Ordinance § 96.04, which the parties represent states in relevant part: "Parks shall be closed to the public every day of the year from 11:00 p.m. until 7:00 a.m., except for such functions as fireworks displays and such other community programs as may be authorized by the Public Works Director, or his or her designee."

The defendants moved to dismiss the charges against them, arguing, in part, that the "application of the criminal law to their protected rights to free speech" violated the New Hampshire and Federal Constitutions. The court conducted a hearing, after which it denied the defendants' motion and found the defendants guilty. This appeal followed.


The defendants argue that application of the park curfew ordinance suppressed their expressive activity, which, they contend, is protected under Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. This argument presents a question of constitutional law, which we review de novo . State v. Biondolillo, 164 N.H. 370, 373, 55 A.3d 1034 (2012).

Part I, Article 22 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 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 the defendants' claims under the State Constitution, and rely on federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Although the State Constitution contains robust guarantees of free speech, it does not offer absolute protection to all speech under all circumstances and in all places. Biondolillo, 164 N.H. at 373, 55 A.3d 1034. When assessing whether government restrictions impermissibly infringe on free speech, we "(1) assess whether the conduct or speech at issue is protected by the [State Constitution], (2) identify the nature of the forum in order to determine the extent to which the government may limit the conduct or speech, and then (3) assess whether the justifications for restricting the conduct or speech satisfy the requisite standard." Watters v. Otter, 854 F.Supp.2d 823, 828 (D.Idaho 2012) ; see Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) ; Doyle v. Comm'r, N.H. Dep't of Resources & Economic Dev., 163 N.H. 215, 220–27, 37 A.3d 343 (2012). We address each step in turn.


Part I, Article 22 expressly preserves the right to free speech . Although we do not accept "the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea, we ... acknowledge[ ] that conduct may be sufficiently imbued with elements of communication to fall within the scope of [constitutional protections]." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quotations and citation omitted); see State v. Comley, 130 N.H. 688, 691, 546 A.2d 1066 (1988) (noting that although statute did not specifically regulate speech, its application "may have such an effect where a prosecution under the statute concerns conduct encompassing expressive activity").

On appeal, the State urges us to "review the threshold question of whether the defendants' activity constituted protected speech," even though this was not raised in the trial court. This we decline to do. The defendants argued to the trial court that their encampment in Veteran's Park "was a symbolic expression of the possibility of a more democratic, just and economically egalitarian society" and, therefore, warranted constitutional protection. The trial court implicitly adopted this position, noting that "[t]he defendants argue and the State does not dispute that as applied, the enforcement action ... encompass[ed] expressive speech." "We have long held that we will not consider issues raised on appeal that were not presented in the [trial] court." Doyle, 163 N.H. at 222, 37 A.3d 343 (quotation omitted); see also State v. Boyle, 148 N.H. 306, 309, 807 A.2d 1234 (2002). Consequently, we will assume, without deciding, that the defendants engaged in constitutionally protected expressive conduct. See Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (assuming, but not deciding, that overnight sleeping in connection with demonstration was constitutionally protected expressive conduct).


"[I]t is ... well settled that the government need not permit all forms of speech on property that it owns and controls."

International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). "[T]he standards by which limitations on speech must be evaluated differ depending on the character of the property." Doyle, 163 N.H. at 221, 37 A.3d 343 (quotation omitted). Government property generally falls into three categories—traditional public forums, designated public forums, and limited public forums. Id. "A traditional public forum is government property which by long tradition or by government fiat has been devoted to assembly and debate." Id. (quotation and brackets omitted); see also International Soc. for Krishna Consciousness, Inc., 505 U.S. at 679, 112 S.Ct. 2701.

The events at issue occurred in Veteran's Park, which is a Manchester city park. The parties agree that Veteran's Park is a traditional public forum. Thus, we will assess whether the justification for restricting the defendants' conduct satisfies the requisite standard for traditional public forums.


As we have previously stated, under the State Constitution the right of free speech

may be subject to reasonable time, place and manner regulations that are content-neutral, narrowly serve a significant governmental interest, and allow other opportunities for expression. Even where a law regulates conduct generally, without addressing speech in particular, it nonetheless may effect an incidental regulation of speech that, like direct regulation, is constitutionally permissible if it does not exceed the bounds of the limited, content-neutral time, place and manner standard.


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