first amendment rights at issue in keene vs. robin hooders case

First Amendment rights at issue in Keene vs.Robin Hooders caseBy Kyle Jarvis Sentinel Staff| Posted: Friday, July 12, 2013 12:00 pm

Arguments over the First Amendment are taking center stage in a controversial case involving thecity of Keene and a group known as the Robin Hooders.

The citys legal staff filed a petition against the Robin Hooders in May, claiming they areharassing parking enforcement officers while they follow officers around in parking lots, fillingparking meters to prevent the officers from writing tickets. They also videotape the officers.

Named in the suit are Graham Colson, James Cleaveland, Garret Ean, Kate Ager, Ian Freeman andPeter Eyre, who are also associated with a local anti-government group with libertarian leanings.

The citys petition seeks to create a 50-foot buffer zone around the parking enforcement officers toprotect them from the alleged harassing behavior by the Robin Hooders.

In Cheshire County Superior Court last month, City Attorney Thomas P. Mullins asked JudgeJohn C. Kissinger Jr. to move forward with the case, while the Robin Hooders argued fordismissal. Kissinger gave both sides until early July to submit additional arguments.

And theyve done so, citing case law to support their positions.

The city has hired Erik G. Moskowitz of Concord, an attorney with more expertise in FirstAmendment issues than the citys legal staff, said city attorney Thomas P. Mullins.

Moskowitz said in a court filing that, Here, where the Defendants consistently videotape the(parking enforcement officers) in very close proximity while engaging in other non-peaceful,disruptive behavior, Defendants actions are not constitutionally protected.

Citing a 1992 Virginia case, Moskowitz argues the First Amendment allows restrictions on speechand conduct that are of such slight social value ... that any benefit that may be derived fromthem is clearly outweighed by the social interest in order and morality.

He also argues that its not the Robin Hooders message that city officials are concerned with, butrather their alleged behavior in delivering that message to parking enforcement officers. Officerssaid in court affidavits that Robin Hooders have verbally harassed them and occasionally bumpedinto them. City officials paid former Keene police Capt. Peter S. Thomas more than $1,000 tofollow the Robin Hooders and videotape them to determine whether harassing behavior wastaking place. No criminal charges have been filed against any of the Robin Hooders as a result of

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that investigation.

If the Robin Hooders were delivering a different message, their actions would be just asdisruptive and would similarly interfere with the citys contractual relationship and with theparking enforcement officers ability to perform their job functions, Moskowitz said.

The officers, he argued, are individuals with personalities, with feelings and emotions, and mostimportantly, with personal rights. These individuals have a right to serenity; privacy; andemotional, mental, and physical well-being.

If the Robin Hooders actions are allowed to continue without the buffer zone, parkingenforcement officers might take sick leave, file workers compensation claims, suffer temporaryor permanent disability, or voluntarily resign their employment actions which would preventthe (officers) from performing their employment obligations for the city and cause the cityfinancial harm, Moskowitz said.

That the safety zone may reduce to some degree the potential audience for Defendants speech,he said, is of no consequence because there remain more than adequate alternative avenues ofcommunication.

In this situation, the defendants speech is not protected because of the officers inability to escapeit, Moskowitz argues.

On the other side, Cleaveland, in a legal memorandum, argued that the citys petition isunconstitutional.

The U.S. Supreme Court has examined the issue of buffer zones specifically in cases regardingstate laws regarding abortion clinics and found that floating buffer zones ... areunconstitutional, because they impose limitations that violate the First Amendment.

Cleaveland said the Supreme Court ruled that The floating buffer zones are struck down becausethey burden more speech than is necessary to serve the relevant governmental interests, and thatsuch zones around the people prevent defendants ... from communicating a message from anormal conversational distance or handing out leaflets on the public sidewalks.

Cleaveland, who is credited by Freeman with starting the local Robin Hood effort, cited thesignificance of protecting speech aimed at holding government officials accountable.

The court noted, he points out, that freedom of expression has particular significance withrespect to government because it is here that the state has a special incentive to repress oppositionand often wields a more effective power of suppression.

He further argues that the parking officers are police officers and those jobs come with an


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expectation of some level of confrontation.

In our society, police officers are expected to endure significant burdens caused by citizensexercise of their First Amendment rights, he said, citing the high courts 1987 ruling in City ofHouston v. Hill.

Jon Meyer, an attorney in Manchester who handles freedom-of-speech cases, agreed to representthe group pro bono.

Were talking about what is political expression in a public place, which both the U.S. and N.H.Supreme Court have said is the most protected type of expression, Meyer said in a telephoneinterview. It seems to me the type of limits the city is requesting would violate the rights thecourts have established. It really doesnt matter what the cause is; all people of all points of viewhave a right to expression.

Meyer said that while its certainly true (political) expression can be aggravating, frustrating, orhurtful to other people ... the value of free speech is such that the fact it may be aggravating orirritating is not sufficient grounds to suppress it.

Mullins, the city attorney, said in a telephone interview that its clear that the court really wantsto understand and explore the First Amendment issues that are attached to this. And while wewere hoping we might be able to avoid that, we knew it was a significant possibility.

The hearing on the case is set for Aug. 12.


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first amendment rights at issue in keene vs. robin hooders case

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