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Swastika lawsuit survives motion to dismiss; defense seeks reconsideration

Union Leader Correspondent

July 31. 2017 9:37PM
The presence of a Lucky Flour sack in a Littleton antique shop led to a social media controversy, the store's closure and, ultimately, a lawsuit. (FACEBOOK)

HAVERHILL — Although he noted “defects” in it, a judge has ruled that a lawsuit by a Littleton antiques store owner who claims she was driven out of business after being vilified on social media by a customer upset by her display of a flour sack with a swastika on it, can move forward.

In a July 23 order that was filed with the court four days later, Justice Lawrence MacLeod denied a defense motion to dismiss the lawsuit that Nicole Guida, owner of the now-closed Chic & Unique antique shop on Main Street, brought in February against Katherine Ferrier of Bethlehem in Grafton County Superior Court.

The lawsuit alleges that on Nov. 26, 2016, Ferrier went to Guida’s store and observed a 1912 Lucky Flour sack behind the sales counter on which there was a swastika. While Ferrier expressed concern that the swastika was a racist, hateful symbol used by the Nazis and some modern-day sympathizers, Guida maintained that it was a symbol of good luck among many societies for millennia.

Guida, who is represented by attorney Kirk Simoneau, alleges that Ferrier’s comments about their exchange on Facebook on Nov. 28, 2016, defamed her; put her in a false light; negligently and intentionally inflicted emotional distress; and interfered with her business to an economic detriment.

Because Ferrier’s alleged acts were “… wanton, malicious and oppressive, and she was motivated by ill will, hatred, hostility or evil motive …” the lawsuit asks for enhanced damages.

Ferrier, who is represented by attorney Michael Lewis, has maintained that her remarks are protected by both the U.S. Constitution and New Hampshire Constitution. Through Lewis, she filed a motion for reconsideration of MacLeod’s order on July 31.

In his order, which followed a hearing on June 27, MacLeod said that the court, in ruling on a motion to dismiss, must “determine whether the plaintiff’s allegations stated in her complaint ‘are reasonably susceptible of a construction that would permit recovery.’”

Later, while agreeing with Ferrier that “speech of public concern is afforded significant protection” under law, MacLeod nonetheless noted that “published defamatory falsehoods regarding a private individual are not without consequence merely because they involve matters of interest to the public.”

He summed up that the discovery process already under way “should allow” Ferrier “sufficient opportunity to ascertain which statements of fact the plaintiff contends are false and the evidence upon which her claims are grounded.”

Lewis, in his motion for reconsideration, pointed out that MacLeod identified Ferrier’s original Facebook post as a central issue in his July 23 order, but neglected to mention that the post “… contains no allegation that Plaintiff was a racist or anti-Semite.”

Also, Lewis wrote, MacLeod has previously accepted the defense’s “indisputable fact” that the swastika was the “symbol and standard of Nazi Germany” under which the Holocaust, and other atrocities occurred.

MacLeod’s denial of the motion to dismiss Guida’s lawsuit “misapprehended” the scope of Ferrier’s free-speech rights, said Lewis, who added that the U.S. Supreme Court “has repeatedly held that the 1st Amendment protects an individual ability to speak on matters of public import, even if the speech is profoundly controversial and hurtful.”

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