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Alton man's free speech defense fails, judge finds him guilty for lambasting selectmen

Union Leader Correspondent

January 18. 2018 3:51PM
Judge Michael Garner watches a video recording of a Feb. 22, 2017 Alton Board of Selectmen's meeting that resulted in the arrest of Jeffrey Clay. (Bea Lewis/Union Leader Correspondent)

Jeffrey Clay takes an oath to tell the truth prior to testifying during his trial on misdemeanor charges of disorderly conduct and resisting arrest for his behavior during an Alton Board of Selectmen's meeting last winter. A judge has found him guilty. (Bea Lewis/Union Leader Correspondent)

LACONIA — Jeffrey Clay, twice removed from Alton Town Hall in handcuffs for haranguing selectmen, has been found guilty of disorderly conduct and resisting arrest.

Judge Michael Garner, who presided over a two-day bench trial in 4th Circuit Court, concluded in his 20-page opinion Wednesday that the video of a Feb. 22, 2017 meeting "strongly supports the finding that Mr. Clay intended to annoy the Board of Selectmen."

The misdemeanor charges Clay was convicted of carry a maximum penalty of up to a $1,200 fine. Prosecutor Anthony Estee said he will likely ask the court to suspend that fine on the disorderly conduct charge, but impose some financial sanction for resisting arrest or detention.

A similar set of charges were dismissed in February 2015 by Laconia Circuit Court Judge James Carroll, who concluded the decision to arrest Clay amounted to "pure censorship."

It appeared Clay's "intent had evolved from discussions of any specific agenda item into an effort to confront the board with invective, either to test their limits or to provoke them to take some action under the rules," the judge wrote.

Garner rejected Clay's assertion he was warming up to the topic under discussion that night, ambulance service, and that Board Chairman Cydney Shapleigh only allowed a few seconds for him to get on topic before having him taken away in cuffs.

"(The) record taken as a whole supports the conclusion that Mr. Clay had minutes, not seconds to absorb the request, made according to the rules, that he (said) what agenda item he was going to address, and he chose not to identify any agenda item and chose instead to carry on with his derogatory comments towards the Board," Garner wrote.

The decision can be viewed below:

In the wake of Carroll's decision, Clay sued the town and Chief of Police Ryan Hatch in federal court for targeting over the content of his speech. The suit was settled by the town in 2016 for $30,000 to "buy peace," according to Town Administrator Elizabeth Dionne. Clay split the money with his attorney and the American Civil Liberties Union of New Hampshire, which had helped in his defense.

The town refused to admit any wrongdoing in silencing Clay, instead the settlement states that the agreement is "a compromise of disputed claims" and should not be "construed as an admission of liability."

Garner did dismiss a disorderly conduct charge, writing that other members of the public in the room at the time were not inconvenienced, annoyed or alarmed by Clay's behavior. Just selectmen.

"Our Constitutions permit and encourage passionate and sometimes heated debate between members of the public and those who govern them, and apart from Town Meeting, there is no better opportunity in New Hampshire for members of the public and local government to interact than meetings of locally elected executive authority, in this case the Board of Selectmen," the judge's ruling reads.

The public's exercise of free speech, however, is not unlimited, Garner writes.

Local officials have the authority to "reasonably regulate" the public's right to be heard by adopting rules that govern the time, place and the manner in which public meetings will be conducted, the judge said, adding selectmen also have the authority to enforce those rules.

The judge found that Cpl. Bill Tolios acted lawfully when he ordered Clay to leave at the behest of selectmen. Clay's refusal, Garner said, amounted to disorderly conduct subjecting Clay to arrest.

Garner justified convicting Clay of the resisting arrest charge for his being slow to get up from where he was seated when ordered and for "pulling his arm away" when the officer laid hands on him.

A date for Clay's sentencing has not been scheduled.

Attorney Jared Bedrick of Concord, who represents Clay, did not immediately return a phone call seeking comment, nor did Police Chief Heath.

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