On October 19, 2022, the ACLU-NH, New England First Amendment Coalition, and GLBTQ Legal Advocates & Defenders filed an amicus brief before the New Hampshire Supreme Court in a case where Plaintiff Dan Richards is attempting to use New Hampshire’s defamation law to punish criticism with which he disagrees on a matter of public concern.
Mr. Richards claims that Defendant Robert Azzi defamed him when Mr. Azzi published a Union Leader op-ed on June 18, 2021 stating, in part, that Mr. Richards (and others) (i) are “[d]esperate to stay bonded to America’s original sins of slavery and genocide of indigenous peoples,” and (ii) have “disseminated, across multiple media platforms, white supremacist ideology to keep Americans from learning an unexpunged American history from its 1619 origins along-side the dominant White 1776 narrative.” As argued in the amicus brief, these two statements at the beginning of the op-ed are not actionable under the First Amendment and Part I, Article 22 of the New Hampshire Constitution. It is well established that an accusation of bigotry is a protected expression of opinion.
As explained in the amicus brief, at the time of Mr. Azzi’s June 18, 2021 statements, there was (and still is) intense debate around whether businesses and government agencies should be prohibited from engaging in diversity, equity, and inclusion (“DEI”) training, and whether public schools should be prevented from addressing topics like systemic racism. As the ACLU-NH, GLAD, and others like Mr. Azzi have argued, such information would acknowledge the lived experiences of communities of color in the Granite State and, in the school context, create a better sense of belonging for New Hampshire’s most marginalized individuals. Mr. Richards and others disagree. Of course, Mr. Richards has the constitutionally-protected right to espouse these views. But so do individuals who disagree with him. Mr. Azzi’s views, like Mr. Richards’ own, are part of the marketplace of ideas. Mr. Richards’ lawsuit, were it to survive and proceed to discovery, would not only chill robust debate on matters of public concern, but also would potentially cause media outlets, out of a fear of vexatious litigation, to self-censor the vital fora that they create for members of the public to debate important issues of the day. The Union Leader opinion section is among the most prominent and important marketplaces of ideas in New Hampshire. It gives a platform to ordinary people and presidential candidates. Mr. Richards can submit op-eds of his own for potential inclusion in this forum. But he cannot use defamation law to punish the Union Leader for publishing opinions with which he disagrees.