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Judge denies second motion to dismiss swastika flour sack lawsuit

Union Leader Correspondent

October 17. 2017 11:58PM
The presence of a Lucky Flour sack in a Littleton antique shop led to a social media controversy, the store's closure and, ultimately, a lawsuit. (FACEBOOK)

HAVERHILL — For the second time in three months, a judge has ruled that a lawsuit brought by a former Littleton antiques store owner who claims she was driven out of business by a customer upset by her display of a flour sack with a swastika on it can move forward.

In an order issued Oct. 6 in Grafton County Superior Court, Justice Lawrence MacLeod denied a motion brought by Katherine Ferrier of Bethlehem to reconsider his July 23 denial of her motion to dismiss the lawsuit filed in February by Nicole Guida, owner of the now-closed Chic & Unique antique shop on Main Street.

Guida’s lawsuit alleges that on Nov. 26, 2016, Ferrier went to her store where she observed a 1912 Lucky Flour sack behind the sales counter on which there was a swastika. The lawsuit said Ferrier told Guida that the swastika was a racist symbol, while Guida maintained that historically it was a symbol of good luck among societies throughout the world.

Two days after their exchange at the store, Guida’s lawsuit alleges that Ferrier posted comments about it on Facebook.

The comments, said Guida, defamed her; put her in a false light; negligently and intentionally inflicted emotional distress; interfered with her business to an economic detriment; and were “… wanton, malicious and oppressive, and she was motivated by ill will, hatred, hostility or evil motive …” which is why Guida is seeking enhanced damages.

Ferrier has contended that her comments are protected by both the U.S. Constitution and New Hampshire Constitution, and through her attorney, Michael Lewis, made that argument in her motion for reconsideration.

In the motion, Lewis wrote that MacLeod had “misapprehended” the extent of Ferrier’s free speech rights, adding that the U.S. Supreme Court “has repeatedly held that the 1st Amendment protects an individual ability to speak on matters of public import, even if the speech is profoundly controversial and hurtful.”

But in his Oct. 6 order MacLeod said the motion for reconsideration asked for a hearing but “did not articulate how a hearing will further assist the court in determining the pending issues and therefore the court finds that a hearing is not necessary to address the parties’ pleadings.”

The court also found that “there are no issues or fact of law which were not previously considered by the court or which warrant a different decision than that determined by the court in its prior order.”

In the July 23 order, while MacLeod agreed with Ferrier that “speech of public concern is afforded significant protection” under law, he pointed out that “published defamatory falsehoods regarding a private individual are not without consequence merely because they involve matters of interest to the public.”

Also on Oct. 6, MacLeod granted a motion that gave the defense at least 30 days in which to file an answer and counterclaim to Guida’s lawsuit, with a target date of Nov. 6.

Courts Haverhill

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