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How the AG's office draws the line between free speech and intimidation during town meeting season

Signs outside the Lee transfer station during the 2021 town election instruct voters to wear their masks and shut off their engines.
Dan Tuohy
The pandemic is one of many factors forcing changes on how local voters interact with their elected officials. Last spring, many towns opted to hold "drive-through voting" as a safety precaution. In Lee, that took place at the local transfer station.

As debates on town and school issues increasingly play out on social media, the New Hampshire Attorney General’s office says its fielding questions — and occasionally complaints — about the line between free speech and intimidation.

Associate Attorney General Anne Edwards said the office regularly fields concerns from residents about inflammatory social media posts regarding school and municipal elections. Sometimes, these posts include misinformation or disparage individuals.

“Many times, in election issues, you have very passionate people on both sides of an issue — maybe a question on a warrant article or a specific candidate,” Edwards said. “And we work through whether or not someone has crossed the line from First Amendment protected speech and debate into an area where they are threatening harm to someone.”

But in her nearly 30 years responding to election complaints, these investigations have yet to find a violation of New Hampshire’s laws regarding voter suppression, intimidation and bribery.

Those laws prohibit someone from using or threatening force to knowingly keep someone else from voting, and they prohibit attempting to keep another person from voting by knowingly providing false information.

That kind of threatening or intimidating conduct is different, Edwards said, than merely publicly criticizing someone’s position on a specific town or school issue. This year, for example, the Attorney General’s office has fielded complaints about a Facebook post that listed the names, addresses and employment information of Hampton voters who supported a certain warrant article; some of the people named in the post said it has led to antagonistic encounters online and at their homes.

Edwards said many people who sign petitions to put warrant articles on the ballot don’t realize that this information is public and can be shared widely on social media or elsewhere.

“There is the ability in the First Amendment to say to somebody, ‘I don't like you because you're voting for this,’ or using profanity to somebody, saying, ‘You're an idiot. Bleep, bleep, bleep, because you're voting this way,’” Edwards said. “And that that can be the First Amendment in all of its challenging ways that people find uncomfortable at times.”

Edwards said the office is also sometimes asked to “arbitrate on the truthfulness or accuracy of social media posts.”

“That's not what we do here at the Attorney General's office,” Edwards said. “We talk with people about the fact that, that is the First Amendment. And so sometimes the information that people post isn't correct, and people who are reviewing that information need to be reading it with a critical eye.”

The Attorney General’s office says residents with concerns should contact the Election Law Unit or Secretary of State’s office. And they’re reminding the public that any political advertising — like mailers, or a website — needs to identify who distributed and paid for it.

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