This question involves the intersection of free speech and disorderly conduct. When considering these competing matters, the short answer is probably not.
What counts as “disorderly conduct” under New Hampshire law?
Under New Hampshire law, there are three broad categories of behavior which render a person guilty of disorderly conduct:
- He or she, without legitimate purpose to do so, knowingly or purposely creates a condition hazardous to himself or another in a public place;
- He or she (a) publicly engages in fighting, violent, tumultuous or threatening behavior, (b) publicly directs obscene, derisive, or offensive words likely to provoke a violent reaction at another person, (c) obstructs traffic on any public street, sidewalk, or to the entrance of any public building, (d) substantially interferes with a criminal investigation, a firefighting operation under RSA 154:17, the provision of emergency medical treatment, or the provision of other emergency services when traffic or pedestrian management is required, or (e) knowingly refuses to comply with a lawful order of a peace officer to move from or remain away from any public place; or
- He or she purposely causes, or recklessly creates a risk of, a breach of the peace, public inconvenience, annoyance or alarm by (a) making loud or unreasonable noises that would disturb an average person in either a public place or in a private place which can be heard from a public place or other private places, (b) disrupting the orderly conduct of a public or governmental facility, or (c) disrupting any lawful assembly or meeting without lawful authority to do so.
How far does the right to free speech extend?
Our New Hampshire Supreme Court has stated, “the State and Federal Constitutions contain robust guarantees of free speech, but they do not offer absolute protection to all speech under all circumstances and in all places.” Under the State Constitution, the right to free speech may be restricted by “reasonable time, place and manner regulations that are content-neutral, narrowly serve a significant governmental interest, and allow other opportunities for expression.”
Thus, “even where a law regulates conduct generally, without addressing speech in particular, it nonetheless may effect an incidental regulation of speech that, like direct regulation, is constitutionally permissible if it does not exceed the bounds of the limited, content-neutral time, place and manner standard.” Likewise, such restrictions are also permissible under the Federal Constitution.
Moreover, the constitutional right to free speech only protects individuals from governmental restriction on or retaliation to speech; it does not protect individuals from the actions of private individuals, nor from the non-governmental, societal consequences that may stem from one’s exercise of free speech.
What is the line between exercising one’s right to free speech and engaging in disorderly conduct?
In 1971, the United States Supreme Court held that it was unconstitutional to criminalize, through a disorderly conduct statute, the act of wearing a jacket that read “F**k the Draft” while inside a public courthouse with others present. Here, the Court reasoned that “we are often captives outside the sanctuary of the home and subject to objectionable speech.” Although the words may have been offensive to some, and although the defendant was in a public place when he expressed the words, the Court held that “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.”
Likewise, in 1975, the New Hampshire Supreme Court held that it was unconstitutional to criminalize, through New Hampshire’s disorderly conduct statute, the act of stating “f**k the political pigs” and “don’t worry about the other f*****g pigs” during a public event attended by many members of the local community. Here, the Court reasoned that “an undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” In short, the Court determined that “however distasteful the language used by this defendant is to the average person,” it was unconstitutional to criminalize the defendant’s use of the language.
However, there are certain forms of speech and expression that the government may permissibly restrict to a greater extent. For example, fighting words are subject to greater regulation by the government because of their ability to cause a breach of the peace. The term “fighting words” means words communicated face-to-face which are likely to cause a breach of the peace by the person to whom the words are directed. Moreover, even if words are not personally abusive, if the words nevertheless present a clear and present danger of riot, disorder, other immediate threat to public safety, peace or order, such words are also subject to greater regulation by the government.
If you think that you have been arrested for disorderly conduct in violation of your right to free speech, you should consult an experienced New Hampshire civil rights lawyer. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.
This question involves the intersection of free speech and disorderly conduct. When considering these competing matters, the short answer is probably not.
What counts as “disorderly conduct” under New Hampshire law?
Under New Hampshire law, there are three broad categories of behavior which render a person guilty of disorderly conduct:
- He or she, without legitimate purpose to do so, knowingly or purposely creates a condition hazardous to himself or another in a public place;
- He or she (a) publicly engages in fighting, violent, tumultuous or threatening behavior, (b) publicly directs obscene, derisive, or offensive words likely to provoke a violent reaction at another person, (c) obstructs traffic on any public street, sidewalk, or to the entrance of any public building, (d) substantially interferes with a criminal investigation, a firefighting operation under RSA 154:17, the provision of emergency medical treatment, or the provision of other emergency services when traffic or pedestrian management is required, or (e) knowingly refuses to comply with a lawful order of a peace officer to move from or remain away from any public place; or
- He or she purposely causes, or recklessly creates a risk of, a breach of the peace, public inconvenience, annoyance or alarm by (a) making loud or unreasonable noises that would disturb an average person in either a public place or in a private place which can be heard from a public place or other private places, (b) disrupting the orderly conduct of a public or governmental facility, or (c) disrupting any lawful assembly or meeting without lawful authority to do so.
How far does the right to free speech extend?
Our New Hampshire Supreme Court has stated, “the State and Federal Constitutions contain robust guarantees of free speech, but they do not offer absolute protection to all speech under all circumstances and in all places.” Under the State Constitution, the right to free speech may be restricted by “reasonable time, place and manner regulations that are content-neutral, narrowly serve a significant governmental interest, and allow other opportunities for expression.”
Thus, “even where a law regulates conduct generally, without addressing speech in particular, it nonetheless may effect an incidental regulation of speech that, like direct regulation, is constitutionally permissible if it does not exceed the bounds of the limited, content-neutral time, place and manner standard.” Likewise, such restrictions are also permissible under the Federal Constitution.
Moreover, the constitutional right to free speech only protects individuals from governmental restriction on or retaliation to speech; it does not protect individuals from the actions of private individuals, nor from the non-governmental, societal consequences that may stem from one’s exercise of free speech.
What is the line between exercising one’s right to free speech and engaging in disorderly conduct?
In 1971, the United States Supreme Court held that it was unconstitutional to criminalize, through a disorderly conduct statute, the act of wearing a jacket that read “F**k the Draft” while inside a public courthouse with others present. Here, the Court reasoned that “we are often captives outside the sanctuary of the home and subject to objectionable speech.” Although the words may have been offensive to some, and although the defendant was in a public place when he expressed the words, the Court held that “the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense.”
Likewise, in 1975, the New Hampshire Supreme Court held that it was unconstitutional to criminalize, through New Hampshire’s disorderly conduct statute, the act of stating “f**k the political pigs” and “don’t worry about the other f*****g pigs” during a public event attended by many members of the local community. Here, the Court reasoned that “an undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” In short, the Court determined that “however distasteful the language used by this defendant is to the average person,” it was unconstitutional to criminalize the defendant’s use of the language.
However, there are certain forms of speech and expression that the government may permissibly restrict to a greater extent. For example, fighting words are subject to greater regulation by the government because of their ability to cause a breach of the peace. The term “fighting words” means words communicated face-to-face which are likely to cause a breach of the peace by the person to whom the words are directed. Moreover, even if words are not personally abusive, if the words nevertheless present a clear and present danger of riot, disorder, other immediate threat to public safety, peace or order, such words are also subject to greater regulation by the government.
If you think that you have been arrested for disorderly conduct in violation of your right to free speech, you should consult an experienced New Hampshire civil rights lawyer. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.