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Free speech again at center of court case involving man's arrest at selectmen's meeting

New Hampshire Sunday News

May 10. 2015 8:01PM
In Laconia District Court Friday, Judge James Carroll listens as Attorney Jared Bedrick, second from left, makes a point on behalf of his client, Jeffrey Clay, far right, who was charged with disorderly conduct in February after continuing to speak during the public input portion of the Feb. 3 meeting of the Alton Board of Selectmen after the selectmen, offended and angered by his remarks, took a vote declaring that public input was closed, even though Clay had used less than half of his allotted five minutes of time to address them. Also pictured are Anthony Estee, the Alton Police Department's prosecutor and, sitting with Clay, Gilles Bissonnette of the American Civil Liberties Union of New Hampshire. (John Koziol)

LACONIA — In a case that could have huge implications, Justice James Carroll — for the second time in six months — is considering whether the constitutional right of freedom of speech can or should be limited to permit the orderly proceedings of government business.

In December in Laconia District Court, Carroll dismissed charges of breach of peace and disobeying a police officer against William Baer, a parent who several months earlier protested a ninth-grade reading selection at a meeting of the Gilford School Board.

On Friday, Carroll held a hearing on a motion to dismiss a misdemeanor charge of disorderly conduct against Jeffrey Clay, who was arrested Feb. 3, at a meeting of Alton selectmen.

While Clay’s attorney argued that his client was exercising his constitutional right of freedom of speech in criticizing selectmen during the “public input” portion of the meeting, both Alton police Prosecutor Anthony Estee and Alton Police Chief Ryan Heath told Carroll that Clay was taken into custody not because of what he said, but because he had interfered with the meeting.

Jared Bedrick of Sisti Law Offices, who along with Gilles Bissonnette of the American Civil Liberties Union of New Hampshire, represents Clay, said his client on Feb. 3 had engaged in constitutionally-protected speech when — without obscenities, anger or physical threats — he asked some of the selectmen to resign for doing a bad job and for violating the state’s Right-To-Know law.

Clay was given five minutes to address selectmen — Clay reportedly set a timer on his cellphone to alert him as he approached the deadline — but just 40 seconds into his remarks, Bedrick said selectmen made and passed a motion that Clay had violated the terms of the public comment by making allegedly defamatory and libelous remarks.

The selectmen’s vote also closed the public input, and when Clay continued to speak, Heath approached him and told him to stop. Because Clay continued talking, Heath issued the command a fourth time, after which he escorted Clay out of the selectmen’s meeting and placed him under arrest — even though Clay still had a minute left to make additional comments.

Subsequently charged with two counts of disorderly conduct, Clay saw one charge dropped prior to Friday’s hearing before Carroll.

During a cross-examination of Heath, Bedrick got the police chief to acknowledge that there are times when free speech has to be constrained, adding that he, not selectmen, made the decision to arrest Clay.

Heath said he didn’t consider whether selectmen had violated Clay’s right to criticize public officials, but he did factor in that Clay had violated the selectmen’s rules on public participation. When Bedrick asked whether the chief believed a violation occurred because selectmen had told him so, Heath said he did.

Heath said that he arrested Clay because Clay disregarded his commands to stop speaking to selectmen, adding that he didn’t think selectmen erred in trying to silence Clay in an attempt to regain control of the meeting.

Later, Bedrick got Heath to concede that Clay had spoken to selectmen only in their capacity as elected officials; that he did not single out an individual selectman or their family members; that Clay did not make any direct threats; and that Clay did not violate the five-minute speaking rule.

In summary, Bedrick called Clay’s arrest “a clear violation” of his freedom of speech and implored Carroll to take the matter very seriously because it was about a constitutional right, not just a misdemeanor charge of disorderly conduct.

Estee said it wasn’t clear that Heath arrested Clay solely at the direction of selectmen, and opined that in some situations, including meetings of the Alton Board of Selectmen, “the First Amendment is not boundless” because government has to be able to do its business.

As to dismissing the disorderly conduct charge against Clay, Estee said the facts of the case are sufficient to bring it to trial, prompting Bedrick to interject that the only reason Clay was arrested was due to “viewpoint discrimination” by selectmen.

Carroll took the defense motion to dismiss under advisement but did not say when he would issue a ruling.

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