MANCHESTER — Members of the Occupy New Hampshire movement who were convicted of trespassing in Veterans Park after they refused to leave the park Oct. 19, 2011, at the 11 p.m. curfew, lost their appeal to the New Hampshire Supreme Court.
The defendants were convicted by Circuit Court-Manchester District Division Judge William Lyons Aug. 14, 2012, who rejected their claim that the curfew violated their constitutional rights to free speech. The high court agreed with Lyons.
The defendants argued the curfew, from 11 p.m. to 7 a.m. “suppressed their expressive activity,” which is protected under both the New Hampshire and U.S. constitutions.
The high court said the State Constitution “does not offer absolute protection to all speech under all circumstances and in all places.” While assuming (as the lower court did), but not deciding, that overnight sleeping in connection with demonstration was constitutionally protected expressive conduct, the court said it is “well settled that the government need not permit all forms of speech on property that it owns and controls.”
The court said that to be valid, “a park curfew ordinance must be a reasonable time, place and manner restriction.” The court said the defendants conceded the ordinance is content neutral and does ensure the public can enjoy the park and it can be maintained and protected.
But they argued they were doing such a good job of preventing problems and maintaining the facilities that the ordinance shouldn’t have been applied to them.
“We disagree,” said the court. To create an exception for the defendants’ political speech and not that of other types of speech “might create a risk of engaging in constitutionally forbidden content discrimination,” the court said. It also said the city did provide alternative channels for the defendants to use, as they had been told they could use the sidewalks outside the park to communicate their messages during the curfew period.