April 23. 2017 8:55PM

Free speech on social media at heart of dispute over swastika-decorated antique flour bag

By JOHN KOZIOL
Union Leader Correspondent


The vacant store front on Littleton's Main Street that until recently housed the Chic & Unique shop. The owner of the shop, in a lawsuit filed in Grafton County Superior Court, alleges that she was put out of business due to social media posts by a customer who was upset that the shop displayed for sale a 115-year -old flour bag that had a swastika symbol on it. (John Koziol / Union Leader Correspondent)

LITTLETON — The limits of free speech on social media may be tested in a lawsuit moving forward in Grafton County Superior Court that centers around a more than century-old flour sack with a swastika symbol on it.

The flour sack was for sale last Nov. 26 in Nicole Guida’s Chic & Unique boutique on Main Street when Katherine Ferrier of Bethlehem saw it and was offended because the swastika was a Nazi symbol.

Guida said the flour sack predated the Nazis, was made by an American milling company; and that the swastika on it was a symbol of good luck that had been used for centuries by people in India as well as by Native Americans.

Unhappy with Guida’s response, Ferrier described her experience in a posting on her Facebook page in which went viral. She also allegedly told Guida she would encouraged others not to shop at the store, according to court records.

In her lawsuit, Guida claims that Ferrier committed defamation, false light, negligent infliction of emotional distress, and tortious interference with economic advantage, saying Ferrier’s alleged acts were “…wanton, malicious and oppressive, and she was motivated by ill will, hatred, hostility or evil motive….”

On April 10, Ferrier, through her attorney Michael Lewis, filed a motion to dismiss, to which Guida’s attorney, Kirk Simoneau on April 20 filed an objection.

In the motion to dismiss, Lewis wrote that he was representing Ferrier pro bono, to “…vindicate her rights to free speech and association” under both the New Hampshire Constitution and the United States Constitution.

“These bedrock constitutional rights are violated by Plaintiff’s civil action,” said Lewis in asking the court to dismiss Guida’s lawsuit; to hold a hearing; and to award “any other relief” that the court deems appropriate.

Lewis said that the court’s granting the financial remedies that Guida is seeking would “…. suppress protected discussion and debate regarding the swastika and its symbolic meaning to surviving victims of Shoah, their children, grandchildren, and great-grandchildren, as well as to many other citizens, Katherine included, who remain justifiably sensitive to the devastation of the Nazi blight.”

A verdict in favor of Guida, he said, would burden Ferrier’s “right to question or comment on perhaps the most fraught symbol of evil in all of human history” while also turning the court into a “censor.”

Facebook, Lewis said, “has emerged as a public forum for the expression of ideas between individuals about political issues,” adding that the protections of the New Hampshire and U.S. constitutions for speech in public places extended to Facebook.

Before addressing the points raised by Ferrier in her motion to dismiss, Simoneau said the motion itself was defective and hence, void, because it was not supported by facts in an affidavit, but instead came with “…countless unsupported facts spread throughout a 24 page motion and hundreds of pages of attachments….”

He said the court should deny Ferrier’s motion to dismiss because it was “truly a motion for summary judgment” and one that exceeded the 20-page maximum length for such a motion.

Simoneau said Ferrier “purposefully mischaracterized” her attack on Guida, because it was not just an attack on the symbol of the swastika but one on Guida, her shop and family, too.

“This was not a Nazi propaganda sign hanging in a local auto body shop or some other unusual location for such a symbol; it was a 1912 flour sack hanging in an antique shop.”

How Ferrier feels personally about the swastika is “not at the heart of the legal issues before the court,” said Simoneau, who wondered “If Defendant believes a similar attack aimed at the Holocaust Museum in Washington, D.C., would be equally appropriate. After all, that museum is filled with actual Nazi swastikas.”

He immediately added that “It is contextually appropriate to find such a symbol in a museum or antique shop. It is there not as a political statement, but as a dog-eared page of an unfortunate time in history just as the African American History Museum reminds us of the horrors of slavery.”

In putting the flour sack for sale in her store, Guida, he said, “wasn’t marking the Nazi period…” but was simply selling “an antique flour sack with a lucky star symbol from 1912 and nothing defendant argues changes the rule governing her motion to dismiss; this court must look at the facts as alleged, not as recast by the defendant.”

jkoziol@newstote.com