The American Civil Liberties Union is weighing in on behalf of a white supremacist group in a case before the New Hampshire Supreme Court, arguing that the state’s efforts to punish the group could chill free speech rights.
Both the national branch of the ACLU and its New Hampshire chapter asked the court to reject an appeal filed by prosecutors following the dismissal of hate crimes complaints against a local white supremacist group.
“Simply because speech is harmful – and it undoubtedly is here – does not mean that it can be prohibited because of its viewpoint,” lawyers for the civil liberties groups wrote in recent court filings.
In 2023, the New Hampshire Attorney General’s Civil Rights Unit filed a civil complaint against NSC-131, as well as two of its purported leaders, after the group briefly hung a banner that said “Keep New England White” onto a highway overpass in Portsmouth. A Rockingham County Superior Court judge, however, twice dismissed the case, ruling that the state was relying on an overly broad interpretation of the civil rights statute. The judge, in those rulings, also raised concerns about broader consequences for free speech based on the state’s response to the banner.
The state’s appeal of those rulings is now before the New Hampshire Supreme Court, though it’s unclear when it could be scheduled for oral arguments. In an amicus brief submitted this week, the ACLU and ACLU New Hampshire write that prosecutors are employing “viewpoint discrimination” in their pursuit of civil charges against the hate group, potentially putting other protestors’ First Amendment rights at risk.
The case hinges on whether the members of NSC-131, which the Anti-Defamation League labels a neo-Nazi group, trespassed onto public property when they hung the banner — and whether they were motivated to do so by racial animus.
The ACLU contends that while the messaging used by NSC-131 is “abhorrent,” the group didn’t directly target a specific person and instead was expressing its constitutionally protected free speech rights. The group also argues that under the Attorney General’s legal theory, authorities could impose civil rights penalties “any time someone commits even an inadvertent trespass while engaged in speech that the officials find offensive—whether the speech is by Black Lives Matter activists condemning racism by white people, pro-Palestine activists protesting the war in Gaza, or pro-Israel proponents counterprotesting.”
In a statement released Friday, Attorney General John Formella defended his office’s handling of the matter.
“As we have maintained since we initiated this case, our construction of the Civil Rights Act is consistent with the free speech provisions of the state and federal constitutions, and we carefully consider any potential action that may appear to impact those rights,” Formella said. “We will continue our efforts to protect all of New Hampshire’s citizens from hate and discrimination by strongly enforcing our Civil Rights Act.”
New Hampshire has seen a wave of antisemitic and racist incidents in recent years, prompting both state and federal authorities to bolster the number of attorneys and investigators assigned to prosecute these cases.
The ACLU, in its court filings for the NSC-131 case, commended the government for its investment in countering acts of bias and for its efforts to “help ensure that New Hampshire is a state that welcomes all.”
