The lawsuit brought originally in 2013 by the “City of Keene” vs several Robin Hooders (people who feed expired meters to save folks from parking tickets) continues onward, with both sides having filed legal memorandums with the Cheshire superior court after a second round of “evidentiary hearings”.
First up, heroic pro-bono free speech attorney Jon Meyer filed this 12-page legal memorandum. Meyer points out that the city’s demand for an injunction against the Robin Hooders would clearly be unconstitutional as it’s directed at specific people and speech. He cites various case law for the court to review, and points out the obvious discrimination and hypocrisy:
If the Defendants had been engaging in demonstrations for the purpose of expressing their support of PEO’s, or were making comments supportive of their job performance, this proceeding would never have been initiated. The videos and other testimony show that other private citizens have emphatically expressed their support for the PEO’s, and their opposition to the Robin Hooders, in some cases physically. No injunction is sought against any of them because they do not convey the Robin Hood message.
Meyer further invalidates the claims of the city that somehow Robin Hooding is a breach of the peace, as claimed by the city’s suit:
There is a criminal statute, RSA 644, which addresses and prohibits virtually every type of breach of peace. The fact that no breach of peace, disorderly conduct, or assault prosecution has been brought against any of the Robin Hood Defendants for Robin Hooding is compelling evidence that this asserted interest is not significantly implicated by their activities.
The only episodes in the record that amounted to anything approaching a disturbance of the peace were several incidents in which Robin Hooders were physically assaulted by third parties. Several instances over several years of hundreds if not thousands of Robin Hooding demonstrations hardly amounts to a substantial problem. 2 And even if it were substantial, it would violate the First Amendment to restrict the Defendants’ expression activity because of illegal assaults against them by third parties. This is a classic example of a “heckler’s veto” which is antithetical to the First Amendment because it puts speech, particularly unpopular speech at risk, and, in effect, rewards mob or individual violence.
Meyer points out that just because the parking enforcers may be uncomfortable with some of what has been said to them on the streets does not give the city the right to restrict freedom of speech:
The right to communicate to public employees has special protection in New Hampshire because the New Hampshire Constitution, Part 1, Art. 8, elevates government accountability to a
constitutional right. The fact that that accountability can be stressful to the agents of government does not dilute the decision of the constitutional framers to elevate its importance over legislative enactment.
Of course, Meyer’s whole 12-page memorandum is excellent, and you should give it a full read if interested.
The City of Keene’s expensive private attorneys then filed a 17-page legal memo of their own where they trot out the usual lies about us “harassing and intimidating” the poor, scared parking enforcers just trying to do their jobs, but then back down even further from their originally requested 50-foot floating constitution-free zones they wanted the court to create around their parking enforcers. Originally in 2013 it was 50 feet, then went to 30 feet, then to 10-15 feet, then when they went to the NH Supreme Court it had become “we’ll take whatever you can give us”.
Now, it’s gone from a floating buffer zone to a ten-foot restriction only if requested by the parking enforcers in each instance! Further, they’ve even tried to carve out exceptions allowing five feet in case the Robin Hooders need to pass by the enforcers. Plus their newly proposed injunctions would only apply to two Robin Hooders (me and Garret) and anyone “acting in concert” with us (which would be impossible to prove about any other Robin Hooders). The city’s attorneys are desperate to get some injunction from the court – any kind of injunction.
Their proposed injunctions in the document they claim would not interfere with Robin Hooding’s core actions, but in a six-page response to their memo, attorney Meyer points out that though the city has backed way down from their original demands, their proposed restrictions are still unconstitutional and further, unenforceable:
“Solution One” is also constitutionally unprecedented in giving the persons against whom the demonstration is being directed discretion to enforce a spatial separation. The second proposal raises the virtually insoluble problem of trying to determine whether or not a Defendant is within 10 feet of a PEO while also being within 15 feet of the parking meter, metered parking space or crosswalk. As demonstrated at the hearing, measurement of distances without equipment is subjective, and estimates vary widely from witness to witness…The proposed relief requested by the City, beyond its constitutional shortcomings, would raise a series of practical concerns and disputes that would likely set off a new round of hearings without significantly addressing the complaints voiced by the PEOs. It demonstrates that there is no relief possible which would be constitutionally, practically enforceable and narrowly tailored to significant government interests.
Stay tuned to Free Keene for the decision, yet to be issued, from Cheshire superior court judge John C. Kissinger. Will he grant the city’s seriously-watered-down request for injunction or toss their case again, like he did the first time around?