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ACLU, Veterans Park protesters to appeal convictions

By DALE VINCENT
New Hampshire Union Leader

August 15. 2012 11:25PM



MANCHESTER - Members of Occupy Manchester, who were convicted of criminal trespass or curfew violation for their refusal to abide by the curfew and leave Veterans Park last Oct. 20, will appeal their convictions.

New Hampshire Civil Liberties Attorney Barbara Keshen had argued before Circuit Court-Manchester District Division Judge William Lyons at a June 22 trial that the 22 people were exercising their New Hampshire and United States constitutional rights of free speech and assembly.

Keshen sought dismissal of the charges, arguing that the First Amendment rights of free speech and assembly in the U.S. Constitution and Part 1, Articles 10, 22 and 32 of the New Hampshire Constitution protected the conduct of the occcupiers.

Lyons disagreed in a 21-page decision issued Tuesday in which he rejected the arguments and convicted all defendants and scheduled a sentencing hearing for Sept. 20.

A curfew violation carries a fine of $50 while a trespass misdemeanor carries up to one year in jail and a $2,000 fine.

Keshen, who is on vacation and has has not seen the decision, said Wednesday she was not surprised by the judge's decision and said the convictions will be appealed. She said the curfew violations will be appealed directly to the New Hampshire Supreme Court and the trespass misdemeanors to Hillsborough County Superior Court North for a jury trial.

In his decision, Lyons said the free speech right guaranteed in the state constitution 'is not absolute.'

The judge said while the park ordinance restricts speech in the park after curfew, it does not prohibit the exercise of free speech on the sidewalks outside the park or on private property.

'The First Amendment protections of free speech do not provide the right to communicate one's views at all times and in all places,' said Lyons.

He also rejected the argument that the New Hampshire Constitution provides broader 'free speech' protections than the First Amendment to the U.S. Constitution.

Keshen said she looks forward to appealing the curfew violations to the New Hampshire Supreme Court to address that very issue. She said the NHCLU wanted to represent the Occupy members to have the New Hampshire Supreme Court decide 'once and for all' what Article 22 means in saying free speech and liberty ought to be 'inviolably preserved.'

The defense argued that Occupy members in the park were protected by the New Hampshire Constitution's Part 1, Article 32 'right to assemble and consult upon the common good . . . and to request of the legislative body, by way of petition or remonstration, redress of the wrongs done them, and of the grievances they suffer.'

Lyons disagreed, saying the constitutional protections of the freedom of assembly and to redress grievances 'are not absolute but are subject to reasonable time, place, and manner regulations that are content neutral, narrowly serve a significant governmental interest, and allow for other opportunities for expression.'

Lyons rejected the defendants' argument that the right to revolution, as stated in Part 1, Article 10, when 'the ends of government are perverted and public liberty manifestly endangered,' extends to 'a spectrum of actions ranging from non-violent resistance to violent revolution.'

'This argument is without merit,' wrote Lyons, who said the Occupy members had not emulated the framers of the Declaration of Independence and the Constitution, who had spent years exhausting every avenue of redress before invoking their right of revolution.

'The Court cannot find that these defendants established that all other means of redress were ineffectual,' wrote Lyons.

The entire decision is available: www.courts.state.nh.us/caseinfo/pdf/StatevsBailey&a/StatevsBailey&a.pdf.

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Dale Vincent may be reached at dvincent@unionleader.com.dvincent@unionleader.com


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