ACLU says neo-Nazis’ racist statements protected
Emphasizes it does not support ‘hateful and repugnant’ message
CONCORD – The American Civil Liberties Union is taking legal action in the New Hampshire Supreme Court in support of neo-Nazis charged with hanging a white supremacist sign in Portsmouth. The goal, according to ACLU-NH leaders, is to protect free speech rights for everyone.
The racist banner reading “Keep America White” was hung on the Stark Street overpass above Route 1 in July 2022.
“The message involved in this case is hateful and repugnant. But the First Amendment protects hateful and repugnant speech, so that government officials are not empowered to punish speech with which they disagree,” said David Cole, legal director of the ACLU. “We condemn the message, but believe that free speech principles bar the attorney general's effort to punish it absent specific targeting of an individual.”
The ACLU and ACLU of New Hampshire announced they submitted a friend-of-the-court brief to the New Hampshire Supreme Court in Formella v. Christopher Hood. They said the brief raises “concerns around viewpoint discrimination that, if applied in this case, could lead to the chipping away of the First Amendment rights of everyone, including Granite State communities who are already the most marginalized.”
Hood, Leo Cullinan (now deceased) and other members of the hate group known as NSC-131, were charged in January 2022 with violating the New Hampshire Civil Rights Act by hanging the banner. Rockingham County Superior Court Judge David W. Ruoff granted Hood and Cullinan their motion to dismiss the charges on June 5, writing that the state's interpretation of the Civil Rights Act against the white nationalists was “unconstitutionally overbroad.”
Attorney General John Formella took issue with the ACLU and the way it is framing its legal argument.
“I am disappointed that the ACLU has chosen to support an organized hate group such as NSC-131,” Formella said in a prepared statement released Friday. “Hate has no place in New Hampshire, and we will not sit idly by while organized hate groups like NSC-131 commit illegal acts for the purpose of harassing and even terrorizing our citizens.”
The Supreme Court has twice denied reconsideration. Formella filed a notice of appeal to the high court in November 2023.
The ACLU noted the superior court ruling said the AG's interpretation could open the door for the state to “punish any number of expressive activities on public property that are abstractly ‘motivated by' race, religion, or any other protected characteristic, including, for example, a Black Lives Matter protest on a public street, a demonstration to ‘save Chinatown,' an abortion protest on the State House lawn, or the proselytization of a particular religion.”
“While the ACLU and ACLU-NH find NSC-131's mission, goals, and tactics to be abhorrent and diametrically opposed to our mission and values, we are gravely concerned that an unfavorable court decision in this case will chip away at the free speech rights of all of us,” said Devon Chaffee, executive director of the ACLU of New Hampshire. “If our state government is able to use the law to suppress viewpoints it does not like just because someone was charged with trespassing, it will enable other citizens and state officials to file similar lawsuits to target groups they don't like, including those who have already been historically marginalized.”
Formella said the law is not on the side of the hate group.
“As my office articulated in its opening brief to the New Hampshire Supreme Court, the right to engage in speech does not permit people to commit unlawful acts, such as the trespass that NSC-131 has been accused of committing,” he said in his statement. “Further, it is a violation of the New Hampshire Civil Rights Act to commit a trespass motivated by race. Such unlawful acts send a message to marginalized communities that New Hampshire does not welcome them. Any failure to enforce our Civil Rights Act in the face of these unlawful acts would send a message to marginalized communities that New Hampshire law enforcement will not take the necessary steps to protect them. As we have maintained since we initiated this case, our construction of the Civil Rights Act is consistent with the free speech provisions of the state and federal constitutions, and we carefully consider any potential action that may appear to impact those rights. We will continue our efforts to protect all of New Hampshire's citizens from hate and discrimination by strongly enforcing our Civil Rights Act.”