On February 3, 2015, Jeffrey Clay was arrested during an Alton Board of Selectmen meeting simply for engaging in political, non-disruptive speech on matters of public concern.
During the February 3 Board meeting, Mr. Clay was given the opportunity to speak on any issue for 5 minutes as part of the Board's policy of "provid[ing] the Board with an opportunity to receive directly from citizens concerns, desires, or hopes they may have for the community.” During his remarks, Mr. Clay asked all Board members to resign for their “poor actions as selectmen,” “poor decisions,” and “continued violations of the citizens’ rights here in Alton.” His remarks referenced, in part, his belief that the Board has violated New Hampshire’s Right-to-Know law by holding “workshop” sessions at odd hours of the day and making decisions during them that were not transparent. He did not raise his voice or use any profanities. His speech was not disruptive.
Approximately 40 seconds into Mr. Clay's speech, one Board member interrupted Mr. Clay, called the remarks “character assassination,” and requested a “point of order.” The Board Chairman recognized the request and ultimately proposed a “point of order” to “clos[e] down public input” because of the “libelous” and “defamatory statements made by Mr. Clay.” The 5-member Board then, with no dissenters, immediately approved the “point of order” closing down public input. All of this occurred within the first 2 minutes of Mr. Clay’s allotted time. Because Mr. Clay's was speaking peacefully on matters of public concern within his 5 minutes of allotted time, he continued speaking. As a result, 4 minutes into his remarks, he was arrested. A video of this incident can be found at http://youtu.be/RYnSJZTFghY.
On February 23, 2015, the State filed two complaints against Mr. Clay alleging disorderly conduct. Each is being charged as a class B misdemeanor, which is punishable by a fine of up to $1,200.
On March 10, 2015, the ACLU-NH wrote the Town of Alton explaining that the Town, in suppressing Mr. Clay's peaceful political speech, engaged in impermissible viewpoint discrimination in violation of the First Amendment. As a result, Mr. Clay's arrest was unlawful, and all charges should be dismissed. However, the State insisted on continuing to prosecute Mr. Clay for one count of disorderly conduct. Accordingly, the ACLU and co-counsel filed a motion to dismiss on April 20, 2015.
On June 9, 2015, the Laconia Circuit Court dismissed the charge. The Court’s decision was unequivocal, ruling that the Town of Alton, in suppressing Mr. Clay’s speech, engaged in pure censorship in violation of the First Amendment. As the Court explained, Mr. Clay’s speech was protected, and that Alton’s actions in silencing him were “nothing less than censorship of [Mr. Clay’s] criticisms given at a time and place designated by the Board itself for public input.” The Court later reiterated this point, explaining that “[t]he action taken against [Mr. Clay], who was complying with the very protocols of the Board and not committing any of the prohibited indicators as defined in the protocols, was pure censorship.” Thus, the Court concluded that “[t]he arrest of [Mr. Clay] is found by the Court to be a violation of [Mr. Clay’s] 1st Amendment right of Free Speech ….”
On July 14, 2015, the ACLU-NH filed a federal civil rights lawsuit on Mr. Clay's behalf. On May 2, 2016, the case settled, with the Town of Alton agreeing to pay $42,500, inclusive of damages and attorneys' fees.