People who displayed a “Keep New England White” banner from a highway overpass in July 2022 did not violate state law because they did not appear to know they were trespassing, New Hampshire’s top court has ruled.
New Hampshire law RSA 354-B:1 states, in part, that a person violates the rights of others when that person inflicts damage, threatens to inflict damage, or trespasses on property “when such actual or threatened conduct is motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability.”
State officials brought civil claims against the members of the Nationalist Social Club, also known as NSC-131, who unfurled the banner on July 30, 2022, in Portsmouth, New Hampshire, contending that they violated the law because their actions were motivated by race and interfered with the lawful activities of others.
A trial court dismissed the case after finding that the state civil rights law was unconstitutionally overbroad. An appeal placed the case in front of the New Hampshire Supreme Court.
The justices, in a unanimous opinion handed down on Jan. 10, upheld the lower court ruling.
It’s also not reasonable to allow charges to be brought against people who don’t appear to know they are trespassing, the justices said. They ruled that state officials must establish that people are knowingly trespassing and noted that officials did not do so in the case against Christopher Hood and the other members of the group that took credit for displaying the banners.
The top court wrote in its opinion that Hood was not wearing a mask, spoke to police officers on the scene, and identified himself as the group’s leader. The group removed the banner and other banners when they were told that they were trespassing on public property.
“Even when construing all reasonable inferences in the light most favorable to the State, we are not persuaded that the complaints sufficiently allege that the defendants knowingly trespassed,” the justices ruled.
The attorney general’s office stated that it was disappointed by the court’s decision but respects it, spokesperson Michael Garrity said in a statement.
“Our office remains steadfast in enforcing the Civil Rights Act to ensure all Granite Staters are free from discrimination, violence, and hate-motivated threats,” Garrity said. “We will continue to explore all options to protect the rights and safety of our communities.”
William Gens, a lawyer representing the group, said its members were “very pleased with the decision.”
“It was based on grounds that we raised all along,” he said, noting that the attorney general’s interpretation “didn’t give adequate notice to the public as to what conduct, including the speech portion of the conduct, was a violation of the statute.”
A second complaint filed against the group by the attorney general’s office is pending. It accuses the group of violations relating to a demonstration outside a Concord, New Hampshire, café that hosted a drag queen story hour event.
