Prohibits schools from banning the wearing or display of the American flag provided it is not done in a disrespectful manner.
In a Nutshell:
- The right to free speech is enshrined in both the First Amendment of the U.S. Constitution and Article 22 of the New Hampshire state constitution.
- However, the right to free speech is not absolute. Both national and state courts have upheld exceptions, from outlawing obscenity to slander or the regulation of advertising.
- Interpretations of what constitutes a valid exception to the right to free speech are constantly developing and evolving, as both courts and lawmakers weigh in.
- Current hot-button issues relating to free speech include the regulation of hate speech, net neutrality, and campaign spending reform.
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)
New Hampshire acted to further protect free speech with an amendment to Article 22 of the NH State 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 NH 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 NH 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 NH, including:
- The case of William Bear, who was arrested in 2014 for disorderly conduct after disrupting a school board hearing to protest content of novel distributed to his 9th grade daughter. The NH 4th Circuit Court of Appeals found that "the actions for 'order' by the state do not 'balance,' in the facts of this particular case, the speech rights of the defendant."
- 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 NH 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 NH issued an order prohibiting enforcement of the law, citing the recent US Supreme Court decision in McCullen v. Coakley (2014).
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 NH 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.
Currently, the Federal Communications Commission, which regulates broadband provision, does not allow Internet providers to discriminate the speed with which they deliver data from different content providers to customers. This standard is called 'net neutrality'.
In 2014, the FCC indicated that it was considering a rules change that would allow broadband companies to charge content providers to have their materials delivered more quickly to consumers, or do use their discretion when determining the speed at which content from a particular source will be provided.
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.
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."
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."
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."
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.
When should free speech be limited in NH?
Controversy has arisen over decisions to terminate school employees who testified in support of a guidance counselor charged with raping a teenage student. The ACLU is arguing the terminations violate free speech laws that protect public employees from facing repercussions for things they say outside of work.
Infographic: Free Speech in NH
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