Free Speech, Hate Speech And Civil Discourse: What's Happening In New Hampshire

By Katharine Webster, InDepth NH

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." — The United States Constitution

"Free speech and liberty of the press are essential to the security of freedom in a State: They ought, therefore, to be inviolably preserved.” –—The New Hampshire Constitution

“I don’t think that you can remove a radical ideology through just pure repression or government enforcement. I think it’s going to take more speech and more sunlight and more disagreement, more words and less violence.” — Utah Gov. Spencer Cox, Republican, on the Ezra Klein Show

The killing of Turning Point USA founder and Trump supporter Charlie Kirk is reverberating throughout New Hampshire — and testing the limits of free speech, hate speech and civil discourse.

Students at Bedford High School have started a chapter of Club America, the name for high school groups affiliated with Turning Point USA, a win for the free speech and peaceable assembly rights of conservative students in public schools, said state Rep. Kristin Noble, R-Bedford, who publicized the group on Facebook.

“Conservative kids and parents have felt silenced for many years in town because of bullying,” Noble said in an email. “I really want them to know that those days are over and they don't need to be afraid to express their beliefs.”

At the same time, two public school teachers, one in Manchester and one at Timberlane Regional High School in Plaistow, have been placed on paid leave while they are investigated for remarks they made – one in the classroom and one on Facebook – about Kirk after his death, and some Republican state legislators have called for them to be fired.

At a University of New Hampshire vigil for Kirk, a couple of protestors screamed at the crowd, while student and State Rep. Sam Farrington, R-Rochester, described the political left as being “so far off the walls that our nation is really at war,” and said it was “up to us to fight that battle.”

And Rep. Mike Belcher, R-Wakefield, has proposed legislation he’s calling the CHARLIE Act (Countering Hate And Revolutionary Leftist Indoctrination in Education), to ban educators from teaching “critical theories or related practices that promote division, dialectical worldviews, critical consciousness, or anti-constitutional indoctrination.”

Educators Under Fire — Again

Public employees “cannot say whatever they please to a captive audience of children entrusted to them,” Belcher wrote in an email. “Just as they cannot go on a profanity-laced tirade in a classroom, because such inflicts a moral injury upon those children, they likewise ought not indoctrinate them into intersectional hatreds or anti-American zealotry.

“If teachers are vehement in their demands to do so, they can attempt to do so without a publicly funded position.”

Lawyer Gregory Sullivan, an expert in First Amendment law who has long represented media outlets, including the New Hampshire Union Leader in press freedom cases, says Belcher’s bill violates both the state and federal constitutions because it favors some political views while banning others.

Sullivan is also the president of the New England First Amendment Coalition.

“When you take away students’ and teachers’ ability to debate conflicting ideas, that’s anti-constitutional,” Sullivan said. The landmark U.S. Supreme Court ruling in Tinker v. Des Moines “says that teachers and students do not shed their First Amendment rights at the schoolhouse gate.”

So far, federal judges in the U.S. District Court for New Hampshire have agreed. They have struck down a state law that limited what teachers could say about “divisive concepts” such as race and gender (the decision is currently on appeal) and put another law on hold that would ban all diversity, equity and inclusion policies and programs in public and private schools and colleges that receive state funding, including via student scholarships.

What Speech is Protected?

There are some limits on free speech, however, Sullivan said. Laws that prohibit harassment, true threats, defamation, obscenity and child pornography, as well as speech that’s integral to criminal actions, such as perjury or a call for imminent violence or other lawless actions, have been upheld by the U.S. Supreme Court.

But so-called “hate speech” is protected, he said.

“The most important job of the First Amendment is protecting all speech, but most importantly, speech that we hate,” he said. “Debate on matters of public concern is what the founding fathers promoted when they adopted the First Amendment. We call it ‘the marketplace of ideas.’”

While the facts of every case are different, the New Hampshire teachers who were suspended enjoy considerable free speech protection because they are public high school teachers talking about an event of public interest, Sullivan said.

In a similar case, former state Rep. Arlene Quaratiello, R-Atkinson, was fired from her job at the Raymond public library for writing a letter to the editor supporting two conservative library trustee candidates in Atkinson. She sued on First Amendment grounds, arguing that a prohibition on electioneering by public employees did not extend to political speech in her hometown – and won her job back.

On the other hand, private school teachers and other private employees have no protections beyond what’s spelled out in their employers’ policies or contracts, because the First Amendment is aimed at government coercion of speech, not at private regulation, Sullivan said.

In other words, private schools and companies can dismiss employees for speech that is protected for public employees.

“For example, ABC would be free to fire Jimmy Kimmel if it was allowed within his contract,” Sullivan says. “The government is not free to engage in coercive conduct for speech that leads to a punishing act by a third party” – which, in Sullivan’s view, is what happened when ABC suspended the late-night comedian’s show after Federal Communications Commissioner Brendan Carr threatened regulatory action against affiliates that aired it.

(ABC put “Jimmy Kimmel Live!” back on the air this week, and it was broadcast by WMUR-TV, an ABC affiliate in Manchester owned by Hearst Communications.)

The principle that government cannot coerce speech was reaffirmed last year in a unanimous ruling by the U.S. Supreme Court that said the National Rifle Association could proceed with a First Amendment lawsuit against a New York State official who had suggested that private companies not do business with the organization.

The NRA was represented by the American Civil Liberties Union – which has also successfully represented the teachers’ unions, school districts and others who have sued in New Hampshire over the divisive concepts law and this year’s anti-DEI law, as well as a Trump administration anti-DEI mandate involving education.

Efforts at Civil Discourse

Just because hate speech is protected doesn’t mean that it’s productive – or effective, said former House Speaker Shawn Jasper, a Republican who won the state speakership in 2012 with support from Democrats and moderate Republicans in part because he promised to enforce rules of decorum and civility.

“A president saying, ‘I hate my enemies’ – that doesn’t lead to anything good. As public servants, we’re supposed to be working for the benefit of everyone,” Jasper said. “The country is not just on one side, and when you try to push away all the other viewpoints, nothing good is going to come of that. History has shown us that time and time again.”

The New Hampshire Legislature, at least at the committee level, is less uncivil than Congress, but the further away you get from that level of personal engagement, the more legislators and ordinary people feel free to grandstand, name-call and use profanity, he said.

Hate speech reaches its nadir at a distance, especially on social media, said Jasper, who has received his share of vitriolic emails. And although it’s legal, it has contributed to the decline in productive civil discourse, he said.

“It’s so easy to attack people when you’re not looking them in the eye,” Jasper said. “And it’s so much easier for the silent majority to stay silent, because they know if they speak out against some of the extreme voices who don’t care what they say, they’re going to be attacked.”

University of New Hampshire Sociology Professor David Finkelhor, one of four UNH professors on Turning Point USA’s “Professor Watchlist,” was attacked online after comments he made about statutory rape at a conference were quoted out of context by someone posting on Libs of TikTok.

The selective quotes made Finkelhor, director of the Crimes Against Children Research Center at UNH, sound like he was excusing the behavior of adults who sexually abuse children when “I’ve spent my life trying to prevent the sexual abuse of children and other harms,” he said.

Still, the quotes got picked up and amplified by Fox News – and in addition to hate-filled messages, Finkelhor received “pretty awful” threats from the National Socialist Club, a neo-Nazi group operating in New Hampshire.

“There were posters put up around campus about how misleading I was,” Finkelhor said. “Because I’m Jewish, I was a little bit scared about whether they would show up at my classroom.”

They never did, and Fox News and other news outlets followed up with more nuanced reporting that included Finkelhor’s response. The furor died down after a few weeks.

Finkelhor also received support from UNH leaders, for which he is grateful. Faculty at other universities have not been so fortunate: Some were fired for racist comments during the Black Lives Matter protests, while more recently, others have been fired for supporting Palestine or criticizing Kirk.

More than three years after the threats against Finkelhor, conservative students at UNH galvanized by Kirk’s death say they plan to revive the campus chapter of Turning Point USA – which has yet to remove Finkelhor from its “Professor Watchlist.”

And Jasper is encouraged about the long-term prospects for civil discourse in New Hampshire and nationally after reading a biography of Franklin Pierce, the only New Hampshire citizen to become president of the United States. Pierce, Jasper noted, was savaged by members of his own party as well as his opponents, in the lead-up to the Civil War.

“There are certainly a lot of times in our history when politics has gotten as bad if not worse than it is today, and people get tired of it,” Jasper said.

“Ultimately, the pendulum swings, and it’s the voters who have to look at who they’re choosing, and some of these people will go away,” he said. “And then, civility will return.”

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.