First Amendment rights at issue in Keene vs. Robin Hooders cas...

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First Amendment rights at issue in Keene vs. Robin Hooders case

By 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 the city 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 are harassing parking enforcement officers while they follow officers around in parking lots, filling parking 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 and Peter 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 to protect them from the alleged harassing behavior by the Robin Hooders. In Cheshire County Superior Court last month, City Attorney Thomas P. Mullins asked Judge John C. Kissinger Jr. to move forward with the case, while the Robin Hooders argued for dismissal. 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 First Amendment 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 speech and conduct that are of such slight social value ... that any benefit that may be derived from them 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, but rather their alleged behavior in delivering that message to parking enforcement officers. Officers said in court affidavits that Robin Hooders have verbally harassed them and occasionally bumped into them. City officials paid former Keene police Capt. Peter S. Thomas more than $1,000 to follow the Robin Hooders and videotape them to determine whether harassing behavior was taking place. No criminal charges have been filed against any of the Robin Hooders as a result of

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First Amendment rights at issue in Keene vs. Robin Hooders cas...

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that investigation. If the Robin Hooders were delivering a different message, their actions would be just as disruptive and would similarly interfere with the citys contractual relationship and with the parking enforcement officers ability to perform their job functions, Moskowitz said. The officers, he argued, are individuals with personalities, with feelings and emotions, and most importantly, with personal rights. These individuals have a right to serenity; privacy; and emotional, mental, and physical well-being. If the Robin Hooders actions are allowed to continue without the buffer zone, parking enforcement officers might take sick leave, file workers compensation claims, suffer temporary or permanent disability, or voluntarily resign their employment actions which would prevent the (officers) from performing their employment obligations for the city and cause the city financial 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 of communication. In this situation, the defendants speech is not protected because of the officers inability to escape it, Moskowitz argues. On the other side, Cleaveland, in a legal memorandum, argued that the citys petition is unconstitutional. The U.S. Supreme Court has examined the issue of buffer zones specifically in cases regarding state laws regarding abortion clinics and found that floating buffer zones ... are unconstitutional, because they impose limitations that violate the First Amendment. Cleaveland said the Supreme Court ruled that The floating buffer zones are struck down because they burden more speech than is necessary to serve the relevant governmental interests, and that such zones around the people prevent defendants ... from communicating a message from a normal conversational distance or handing out leaflets on the public sidewalks. Cleaveland, who is credited by Freeman with starting the local Robin Hood effort, cited the significance of protecting speech aimed at holding government officials accountable. The court noted, he points out, that freedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and 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 citizens exercise of their First Amendment rights, he said, citing the high courts 1987 ruling in City of Houston v. Hill. Jon Meyer, an attorney in Manchester who handles freedom-of-speech cases, agreed to represent the 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 telephone interview. It seems to me the type of limits the city is requesting would violate the rights the courts have established. It really doesnt matter what the cause is; all people of all points of view have a right to expression. Meyer said that while its certainly true (political) expression can be aggravating, frustrating, or hurtful to other people ... the value of free speech is such that the fact it may be aggravating or irritating is not sufficient grounds to suppress it. Mullins, the city attorney, said in a telephone interview that its clear that the court really wants to understand and explore the First Amendment issues that are attached to this. And while we were 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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