Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff's motion for summary judgment.
The facts of the case are nothing short of awesome.
September 6, 2009 dawned sunny and temperate in New Hampshire. Plaintiff, Jonathan Doyle, a sometimes landscaper, sometimes janitor, and full time free spirit, filmmaker and performance artist decided to take advantage of the day to engage in an art performance that he called Bigfoot on Mt. Monadnock. That morning the plaintiff purchased a gorilla costume from IParty and, with his then girlfriend, climbed Mt. Monadnock in Jaffrey, carrying the gorilla costume in a backpack. At the summit he donned the gorilla costume and started to perform. He beat his chest with his hands and roared, then retrieved a small handheld video camera from his backpack and walked up to the hikers assembled on the mountain, while still in costume, and asked if any of them had seen “Bigfoot” on the mountain, and if they would like to be interviewed about their sighting. Many wanted their pictures taken with “Bigfoot” and many wanted to be interviewed. According to the plaintiff, the purpose of the film shoot was to draw together community in a way that was humorous and experimental. (Append,1-2). The footage that the plaintiff shot is attached and can be viewed on the disc at Chapter 2. (Append. 3)
As he exited the park the plaintiff asked two park employees if they had heard that Bigfoot has been sighted on the mountain. They responded in the affirmative and the plaintiff asked them to sign notes verifying the sighting. He took the notes to both the State Police and the Troy Police in an effort to garner publicity.
On September 19, 2009, Doyle returned to Mt. Monadnock with five additional people to perform and film a sequel involving the capture of Bigfoot. Among them were a guy dressed in a Snuggie with his face painted blue to act the part of “Boda the Blue Yoda,” and a six-year-old dressed as a pirate.
Defendant Patrick Hummel, the manager of Monadnock State Park, said that they would have no performance that day unless they applied for and received a Special Use Permit. (MSJ at 1)
A permit requirement is not necessarily a huge deal, but in this circumstance it requires a $100 fee, a 30-day waiting period, and a $2 million insurance bond.
Bigfoot argues that his work is performance art.
...[T]here can be no question but that the plaintiff’s film project was expressive conduct protected by the First Amendment and Part 1, Article 22 of the NH Constitution. The newspaper got it right when it characterized the Bigfoot project as a “performance art piece.” (Exhibit 3 to Doyle Dep.) The plaintiff was using his film to express a message that individual hikers having a solitary experience on the mountain should come together to share a communal experience.
See what he did there? After decades of redneck-approved justices who hate free speech (unless it is speech by corporations or churches), the First Amendment isn't what it used to be. But, the New Hampshire Constitution's free speech guarantees are alive and well.
Doyle's counsel, Barbara Keshen, says that the suit is "about preserving the right of the little guy to express himself artistically."
By pushing his complaint to the Granite State’s highest court, “I am maintaining the integrity of being real, enjoying day-to-day things, and having fun with your friends,’’ Doyle said in an interview. “If I let that go, I’ve given up a significant right to the state.’’
Doyle argued that the permit requirements act as an unlawful prior restraint. Whether you learned it from reading Near v. Minnesota or listening to Walter Sobchak's speech in the diner during The Big Lebowski, for your information, the Supreme Court has roundly rejected prior restraint.
When it comes to the mandatory insurance provisions of the regulation, while they seem innocuous on their face, they can act to suppress speech. As Doyle argues, even when the Nazis wanted to march on Skokie, the $300,000 insurance requirement was deemed to be unconstitutional.
He could not articulate any objective criteria that he would or could use to determine whether to grant or deny an application. (Austen Dep 26-28). Without such a definition the regulation can be unfairly and arbitrarily applied.
The regulations also gives the park director broad discretion to approve or deny a permit and to waive, or not waive, the $100 application fee. He waived the fee for a number of National Guardsmen putting on an event for servicemen on their way to Afghanistan because he "felt it was the right thing to do."
The government certainly has a right to regulate how public parks are used, but in doing so, it must tailor the regulations to achieve a reasonable interest while not suppressing more speech than is necessary. Doyle argues that the 30-day notice requirement "effectively forbids spontaneous speech, essential to artistic expression." Doyle argues that the 30-day period might make sense when the event is a large one, but it does not seem to make sense for a small group of people. It particularly makes little sense when hikers can show up unannounced in groups of 20 or more and get a discount, but a film crew of 5 needs a 30-day permit evaluation before they unpack their camera.
These arguments seem compelling, but the trial court did not buy them. Doyle is appealing his loss to the New Hampshire Supreme Court. Aside from Oregon, it is probably the best place in the union to bring a free speech claim. In the 603, "live free or die" is not just a motto on a license plate, it is ingrained in the state's jurisprudence. See this quote from New Hampshire v. Theriault.
“[E]xpression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). “It cannot be doubted that motion pictures are a significant medium for the communication of ideas.” Id. at 501. “The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.” Id. (New Hampshire v. Theriault at 4)
If any independent filmmaker wants to film on Mount Manadnock, he needs to have a 30 day waiting period, and more insurance than the Nazis needed to march on Skokie, and his project rests with the unfettered whim of a state official. That just can't square with the free speech clause of the New Hampshire Constitution.
Marc Randazza is a Massachusetts, California, Arizona, and Florida attorney and 'First Amendment bad ass.' He also writes for his own law blog, The Legal Satyricon.
(Image courtesy of Flickr user dalejarvis licensed under a Creative Commons BY NC SA 2.0 license.)
Free speech in the 603
I agree with your optimism about Doyle's chances on appeal. The last time the CMLP made a free speech argument before the New Hampshire Supreme Court it went very well.