Here’s a portion of our brief:
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The City cannot obtain the injunctions it has requested under Part I, Article 22 and the First Amendment, or Part I, Article 8 of the New Hampshire Constitution. The City requested three injunctions: an access injunction and a videotaping injunction that both would place 30-foot floating buffer zones around all of the City’s current and future PEOs; and a speech injunction.These floating buffer zones are unconstitutional. See Schenck v. Pro Choice Network of Western, N.Y., 519 U.S. 357, 375-380 (1997) (invalidating 15-foot floating buffer zone placed around individuals attempting to access or leave a physical locality under the First Amendment because it burdened substantially more speech than was necessary to further the state’s interests in “protecting public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman’s freedom to seek pregnancy-related services”).
The floating buffer zones the City seeks also suffer from numerous other constitutional defects primarily because they will be placed over an entire group of public servants who patrol traditional public fora throughout the City six days a week. Consequently, these floating buffer zones will make it nearly impossible for appellees to live, walk, drive, park, attend funerals, or visit businesses or other public places in downtown Keene. Demonstrating the shear overbreadth of the request, these buffer zones would even prevent appellees from silently leafleting or peacefully holding a sign on a sidewalk protesting the activities of PEOs where a PEO was within 30 feet. Such a result not only violates the First Amendment and Part I, Article 22, but also violates: (i) appellees’ state rights to freedom of assembly and association (Part I, Article 32); (ii) appellees’ state right to access government officials (Part I, Article 8); (iii) appellees’ fundamental state right to intrastate travel, Donnelly v. City of Manchester, 111 N.H. 50, 51 (1971); and (iv) appellees’ federal and state equal protection rights, id. As a matter of constitutional law and public policy, such a result cannot be sanctioned.
The speech injunction also cannot be obtained. It is a content-based, prior restraint on speech that cannot withstand strict scrutiny. The categories of speech it seeks to prohibit—namely, speech that is loosely characterized as taunting, harassing, and intimidating—are based precisely “on what [speakers] say,” not “simply where they say it.” Therefore, the speech injunction is not only content-based, but is unconstitutionally vague and overbroad, is viewpoint discriminatory, is not limited solely to forms of unprotected speech, and threatens to seriously chill appellees’ right to peacefully speak with the City’s PEOs or question their authority or actions in any way, even if that PEO is writing them a parking ticket.
Thus, the injunctions requested are unconstitutional.