White Supremacy and Free Speech in NH

Photo credit: NH Attorney General

Neo-Nazis have the right to hang a racist “Keep New England White” banner from a highway overpass, according to this week’s decision from New Hampshire Supreme Court in AG v. Hood, 2025 NH 3. How, you may wonder, is the “hate speech” of a vile, dangerous, fear-mongering white supremacist gang called NSC-131, legal?

Because “hate speech” is not a thing in America. Not when it comes to the law, anyway. There is no such thing as speech that is not protected by the First Amendment just because it is racist, or sexist, or homophobic, or otherwise constitutes an identity-based harm. For almost 100 years, courts have consistently and repeatedly quoted Justice Oliver Wendell Holmes, holding “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” US v. Schwimmer, 279 US 644, 655 (1929). Not so in some other countries, but Americans have the right to say all kinds of repugnant things without being silenced or punished by the government.

That’s an important point that a lot of people don’t get. The First Amendment protects you from government action. Generally speaking, racist speech can get you fired from your private sector job, or kicked out of other non-governmental spaces, in a heartbeat.

There are exceptions to the doctrine – types of speech that lose that constitutional protection. Examples include “true threats”; speech that meets the legal (different from the colloquial) definition of harassment;  “fighting words” intended to, and likely to, produce “imminent lawless action”; obscenity (not enough time in this day to parse through the bananas definition(s)); defamation - libel and slander; content-neutral restrictions on the time, place and manner of speech, etc. Those restrictions on speech are allowed.

That last one was an issue in the latest New Hampshire case. The decision actually had a lot to do with whether the defendants knew that they were “trespassing” when they hung the banner without a permit. But the idea was that New Hampshire’s Civil Rights Law, RSA 354-B, as construed and enforced by the state in this case, was unlawfully punishing NC-131 based on the content of their speech. 

The key legal concept here is the idea that the appropriate response to loathsome speech is counterspeech. That more speaking out is the answer, not less. "[H]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 US 323, 339-340 (1974).

When New Hampshire passed a law that was aimed at banning “Critical Race Theory” (actually DEI initiatives, not CRT) in schools, HB 455/HB 2, a federal court ruled that the ban was unconstitutionally vague, noting that "[t]he danger presented by vague speech restrictions is especially severe when a law purports to regulate speech based on the speaker's viewpoint." Loc. 8027, AFT-NH v. Edelblut, 2024 DNH 040, p. 17.

During intense public on-line debate about that law, New Hampshire’s statewide newspaper published an op-ed accusing its loudest advocates of disseminating “white supremacist” ideology. A subject of the article sued the author and the newspaper, alleging that he is not a “white supremacist” at all, that the article defamed him and invaded his privacy by placing him in a “false light.” The author, represented by Michael S. Lewis, and the newspaper, represented by Kathleen C. Sullivan, argued the case to the New Hampshire Supreme Court and won. Richards v. Union Leader Corporation, 2024 NH 49 (2024).

By dismissing the case and refusing to recognize a false light invasion of privacy cause of action, the Court properly protected free speech and free press. You can't fight against teaching and learning about the causes and effects of historic and current disparities and oppression, and then turn around and silence critics who call it racist.

NC-131’s “Keep New England White” banner said the quiet part out loud. But First Amendment jurisprudence protects everyone’s speech in matters of social and political concern. It's a scary exercise to think about what kinds of speech could be punished in the not so distant future if the government is allowed to silence people based on the content of speech it determines to be “hateful.”