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New Hampshire, Portsmouth sue Massachusetts-based Nazis over Rte. 1 banners
By adamg on Wed, 01/18/2023 - 9:36am
The New Hampshire Attorney General's office and the city of Portsmouth yesterday filed civil-rights lawsuits against area Nazi group NSC-131 and a couple of its members for white-power banners they unfurled over Rte. 1 in Portsmouth last July 30.
This trespass violated the Civil Rights Act because it was motivated by race and interfered with the lawful activities of others. The slogan on the banners, "Keep New England White," was plainly motivated by race. The only reasonable interpretation is that the slogan and group's intention was to discourage people of color from residing in or visiting and making them feel unwelcome and unsafe in the New England region, New Hampshire, and Portsmouth. Thus, the defendant, through this trespass, intended to interfere with the lawful activities of those traveling along Route 1 by discouraging them from exercising their right to travel freely through the Granite State.
The defendant’s conduct also disrupted the lawful activities of motorists on Route 1 in Portsmouth because the defendant’s banner disrupted the safe operation upon the highways and subjected motorists to trespass motivated by race.
The attorney general is seeking a court order barring the Nazis, who held a "Keep South Boston Irish" sign at last year's St. Patrick's Day Parade in South Boston, from trying to pull such a stunt in the future.
Last month, a member of the group, which has shown up at other Boston events, was sentenced to three years in federal prison on gun charges.
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Comments
Seems like a stretch
People hang stuff on bridges all the time. If it's a US flag or a "Welcome Home" banner, they generally are left alone. The objectionable stuff is taken down. This banner clearly falls into the "objectionable" category, but this lawsuit seems like a big stretch.
Yea...
I've talked to some feds and US attorneys and have pretty much been told that they don't mind prosecuting cases like this that they might "lose". I've heard federal cases have very strong conviction rates but have also been told that the feds want to send a message and will take on weaker cases if it means fighting Nazis and the like. Doesn't seem like a horrible strategy to me.
Pretense for surveillance
Now they have a reason to keep these goons under supervision.
This also puts the goons on notice that they are under supervision.
Not a stretch
https://www.law.cornell.edu/uscode/text/18/245
"Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—
any person because of his race, color, religion or national origin and because he is or has been—
traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air;
shall be fined under this title, or imprisoned not more than one year, or both..."
Also,
"Nothing in this section shall be construed as indicating an intent on the part of Congress to prevent any State...from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section, nor shall anything in this section be construed as depriving State and local law enforcement authorities of responsibility for prosecuting acts that may be violations of this section and that are violations of State and local law."
Right, but...
There's a piece about "by force or threat of force" because of the 1st Amendment. It's probably a stretch to go from "the slogan and group's intention was to discourage people of color from residing in or visiting and making them feel unwelcome and unsafe" to "force or threat of force."
Go after Nazis on trespassing or public endangerment? Absolutely! But if you start going after people for making others feel "unwelcome or unsafe" there are a lot of activities which you probably support which would be unlawful.
A stretch already being explored
Ever since the Clinton era and the changing nature of workplace harassment, the idea of speech as conduct and valid challenges to free speech when harassment is involved in workplaces or public accommodations (which are also someone's workplace) have gone back and forth on what speech has to be allowed or can be silenced.
Feel free to read up on "hostile environments", "public accommodations", with a healthy dose of Volokh and "speech as conduct" online. Different courts have decided different things and there's no clear answer.
"Keep [insert area] White" certainly creates a hostile environment. There is an implicit "or else..." in the statement. There's context for threats of force against anyone who would violate that epithet. And there's court cases that extend prohibition of creation of hostile environments to public accommodations. It might just depend on which judge you get and which precedents they choose.
Workplace law is very different
Your employer is under zero obligation to respect any presumed right of free speech. There are certain exceptions (i.e. government employees, speech regarding working conditions, probably some limited examples with respect to exercise of religion, etc.) but generally most speech in the workplace can be silenced by an employer. And indeed employers do have responsibility to keep their workplace from being hostile on the basis of protected categories although a workplace which is equally hostile to all employees is A-OK.
And even if they get a favorable ruling from one judge this sort of thing would get appealed all the way up to the Supreme Court and that would be the end of it.
Not my argument
Talk to Volokh.
Also, you've got incorrect understanding of workplace law. "Equally hostile to all employees" is illegal and it would only take one of those employees to complain to the EEOC to elucidate that.
And if a coworker can't be racist to another coworker because it creates a hostile environment where the victim has no way to escape, then why would these supremacists be allowed to create a hostile environment on the road where the victims driving by can't escape it either? It's not like they can just choose where the road goes or how to get from point A to point B once the environment has turned hostile. On top of that, the NH Civil Rights Act evidently includes trespass specifically as something you're not allowed to do against the act if motivated to do so by race.
The First Amendment isn't a suicide pact. We don't have to agree to anyone saying anything at any time to anyone they want. And the courts have determine that time and again to be true. The question isn't even whether these supremacists are allowed to say what they want but rather whether in doing so by trespassing on the bridge (tying their message to the bridge) they went beyond the bounds of NH law.