Repeals the protest-free buffer zone around reproductive health facilities.
Free speech and the law: the United States
The right to free speech is fundamental to American principles, and is enshrined in the First Amendment to the U.S. Constitution, which specifies that "Congress shall make no law… abridging the freedom of speech." While that sounds clear, a variety of legal cases in the U.S. Supreme Court have set precedents for occasions where speech should, in fact, be regulated to some extent. These include:
- Obscenity and child pornography - Miller vs. California (1973)
- True threats, speech inciting 'imminent lawless action' and 'fighting words' that would incite imminent harm or violence - Brandenburg v. Ohio (1969), Watts v. United States (1969), Terminiello v. Chicago (1949)
- Regulation of commercial speech - Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
- Invasion of privacy, slander/defamation, and the intentional infliction of emotional distress - Time, Inc. v. Hill (1967), New York Times Co. v. Sullivan (1964), Hustler Magazine v. Falwell (1988)
- Situations where the time, place, and manner of speech is incompatible with 'normal activity' (Restrictions of this type must be content-neutral, serve significant public interest, and leave open ample alternatives.) - Ward v. Rock Against Racism (1989)
- Information related to national defense or non-military information released with the intent to damage national security - Schenck v. United States (1919)
Free speech and the law: New Hampshire
New Hampshire acted to further protect free speech with an amendment to Article 22 of the New Hampshire Constitution, passed in 1968:
"Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved."
-NH Constitution, Part I, Article 22
Legal cases in New Hampshire since the passing of the Article 22 amendment have mainly upheld the exemptions outlined above on the national level. These include
- State of New Hampshire v. Comley (1988), where the New Hampshire Supreme Court ruled that "The State constitutional right of free speech… is not absolute, but 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."
- Appeal of Booker (1995), where the New Hampshire Supreme Court Personnel Appeals Board ruled that "the free speech rights of government employees are granted at least as much protection under the New Hampshire Constitution as under the United States Constitution."
In more recent years, there have been several significant cases related to the interpretation of lawful restrictions on free speech in New Hampshire, including:
- The case of a New Hampshire man whose request for a vanity plate reading "COPSLIE" was denied by the NH DMV, based on a law prohibiting license plates that "a reasonable person would find offensive to good taste". In 2014, the New Hampshire Supreme Court ruled that "reasonable people frequently come to different conclusions" and that the law "authorizes or even encourages arbitrary and discriminatory enforcement."
- The controversy over SB 319 (2014), which would have created 25-foot 'buffer zones' around facilities offering abortions. The US District Court for New Hampshire issued an order prohibiting enforcement of the law, citing the recent US Supreme Court decision in McCullen v. Coakley.
Active free speech controversies
The regulation of free speech continues to be a hot-button topic on several fronts, either where clear legal precedent has not yet been set, or where large bodies of the public are actively campaigning to change an existing precedent, both within New Hampshire and on the national level.
Hate speech is speech that deliberately "offends, threatens or insults groups based on race, color, religion, national origin, sexual orientation, disability or other traits." (American Bar Association). While it is generally agreed that hate speech should be actively discouraged, controversy centers over whether such speech should be protected under the First Amendment. Hate speech that falls under the exemptions listed above — such as "fighting words" or incitement to imminent criminal activity — would be barred under existing precedents. However, under current interpretations of the First Amendment, speakers do otherwise have the right to say things that are offensive, racist or discriminatory.
Those in favor of maintaining this standard argue that, though hate speech is distasteful, it is important to protect the freedom of expression even of those whose opinions are seen as ignorant and intolerant by the majority. Others counter that hate speech violates a citizen's right to freedom from discrimination, and that banning it would help to prevent hate crimes and promote values of equality and respect.
In December 2017, the Federal Communications Commission, which regulates broadband provision, voted to allow Internet providers to discriminate the speed with which they deliver data from different content providers to customers. This eliminated the previous standard, where all content providers had to be delivered to customers with equal speed. That was known as 'net neutrality'.
There has been a great deal of controversy over ending net neutrality, and free speech has been called into play on both sides of the debate. Supports of net neutrality argue that allowing broadband companies to determine the speed at which different resources are delivered to customers inhibits free speech, as those content providers unable or unwilling to pay for faster traffic will essentially be silenced. However, at least one major broadband provider – Verizon – has protested net neutrality regulations on the grounds that they violate the free speech rights of the company's owners, who should have the right to exercise editorial control over content, much like newspaper publishers.
Free speech rights in New Hampshire largely echo the terms set on the national level by Congress and the U.S. Supreme Court. While the right to free speech is a vitally important one in a democratic society, there are times where both courts and lawmakers have deemed it necessary to restrict perfect freedom of expression. The specific circumstances of these restrictions and their extent continue to be hotly debated subjects.
PROS & CONS
"Free speech should not be restricted."
- Free speech is a vital part of a democratic society.
- It ensures that all opinions are heard and taken into account by those in authority.
- Free speech allows citizens to express any view, regardless of its popularity or degree of controversy, without fear of reprisal.
- Free speech helps to ensure an open, accountable government.
- Restrictions on free speech constitute a 'slippery slope' which could lead to the loss of important personal liberties of thought and religion.
"There are times when free speech should be restricted."
- It's necessary to balance the right to free speech with other rights such as the right to privacy.
- Certain types of speech, such as pornography or hate speech, have been linked to acts of violence such as rape and abuse.
- The government must maintain secrecy of some materials in order to protect the security of its law-abiding citizens.
- Minors are susceptible to and should be protected from materials or points of view that could potentially be damaging to them.
Regulates electioneering at the polling place, which includes displaying information for or against a candidate or ballot measure. ˙Generally speaking, electioneering is prohibited inside the polling place building and within corridors that extend from the polling place entrances. ˙This bill also gives the town moderator and chief law enforcement officer the power to regulate travel and parking related to the polling place, for example prohibiting electioneering on parking surfaces.
Prohibits a superintendent and any other school employees from supporting an employee removed due to a conviction for sexual misconduct. Prohibited behavior includes, for example, providing a character reference.
Gives the state Board of Education more oversight of charter schools, including expenditures, sex education, etc. This bill also requires charter schools to recite the Pledge of Allegience, although the bill also adds this sentence to the law: "No student shall be excluded from school related activities solely because of refusal to participate in the pledge of allegiance or the national anthem."
Prohibits schools from banning the wearing or display of the American flag provided it is not done in a disrespectful manner.
Repeals the prohibition on ballot selfies.
Eliminates the prohibition on wearing campaign clothing at the polls.
States that "No institution within the university system of New Hampshire which accepts state funds shall restrict a student's right to speak, including verbal speech, holding a sign, or distributing fliers or other materials, in a public forum."
Repeals the protest-free buffer zone around reproductive health care clinics.
Repeals the prohibition on ballot selfies.
Establishes "academic freedom and whistleblower protection" for faculty members of UNH.
Proclaims that outdoor areas of the campuses of UNH and community colleges are public forums, and that universities and colleges receiving state funds must allow "spontaneous and contemporaneous assembly."
Expands the prohibition on distributing campaign materials at the polling place to include pins, stickers, and clothing. The bill was amended to also allow some temporary, seasonal, and part-time state employees to participate in their employer's health and dental insurance plans. The bill was also amended to make various changes to tobacco tax laws, for example changing the definition of "premium cigars."
Repeals the prohibition on taking a picture of a ballot and posting it on social media; this would end prosecution for "ballot selfies."
Repeals the law establishing a protest-free buffer zone around reproductive health clinics.
Authorizes the moderator to remove vulgar, sexual, or disturbing campaign materials at the polling place.
Allows alcohol advertisements to reference minors, provided the Liquor Commissioner approves the ad.
Allows citizens to record by audio or video a traffic stop by law enforcement officers.
Repeals the prohibition on showing a marked ballot; this would end prosecution for "ballot selfies."
When should free speech be limited in NH?
A bill that would have repealed the state's "buffer zone", prohibiting protests within 25 feet of the entrance to an abortion clinic, was killed in the House. So far, no clinic in NH has actually taken advantage of the law to create a buffer zone, but several are considering doing so. A similar - but not identical - law in Massachusetts was shot down years ago on free speech grounds, which means a lawsuit will likely follow once a clinic makes use of the NH statute.
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