When I stand up on my desk at Banker & Tradesman and shriek for economic justice for columnists, no one pays much attention. That’s alright. At least I don’t get arrested.
In one of the least important, but most entertaining, “free speech” cases to stagger on up for appellate review in recent years, the New Hampshire Supreme Court recently liberated Bigfoot – the mysterious monkey-man-monster – from state restrictions that had prevented him from prowling Mount Monadnock, looking for love.
While there is modest wisdom to be learned from this case about the inevitable clash between state regulation and the First Amendment, it did have many of the components that you might attribute to a “Saturday Night Live” script.
The amateur filmmaker wandering the mountain dressed as Bigfoot ran afoul of constipated New Hampshire regulations (who said New Hampshire was a Garden of Eden for government-hating Libertarians?), which required him to beg for (and then wait 30 days for) a $100 permit, and post a $2 million insurance bond.
And thus, a First Amendment challenge was born. Was New Hampshire curbing the “free expression” of the artist at work, or was it imposing reasonable restrictions on something and someone that went “beyond routine recreational activities?”
A lower court ruled for the state – and there was no surprise in that. When the state argues that the regulations are designed for “mitigating the impacts of commercial events,” and “protecting visitors from unwelcome or unwarranted interference, annoyance, or danger,” many, if not most, judges give the government busybodies a pass. The assumption is that “public health and safety” trumps minor infringements on freedom.
To win such a case, Mr. Bigfoot would usually have to show that the regulators imposed the restrictions on him because he was a Presbyterian, or because they didn’t like what the movie was about – in other words, an arbitrary enforcement aimed specifically at him.
The most well-known New England case along these lines was Cantwell v. Connecticut, a 1940s U.S. Supreme Court antique that found Connecticut and the city of New Haven had arbitrarily used solicitation permitting and “breach of peace” law to beat up on Jehovah’s Witnesses.
The other legal strategy to employ in such cases (and it proved successful for Bigfoot) was not to argue that the law was too narrowly enforced, but that it was written so broadly that it would apply to almost everyone – unconstitutionally vague, perhaps.
The New Hampshire Supreme Court went along with that approach in its unanimous opinion, describing the regulations as “overbroad.”
Boundary Markers
The nation is probably not perched on the edge of its seats, waiting to see whether Bigfoot returns to the mountain and terrorizes the tourists, but the case is a reminder that there is much murky law involved on the issues on what the public can do on “public” land – and the fuzzy boundary that separates public from private in a First Amendment, “free speech” kind of way.
The 1980 hold-your-nose U.S. Supreme Court decision that, in essence, told states they were free to interpret their constitutions in such a way as to require private shopping centers to permit political petitioners to hassle the shoppers, was a jarring example of the funny business that can occur when “free speech” erupts anywhere, public or private.
The requirement for an insurance bond in the New Hampshire case brings to mind the famous Nazi parade case in 1977, when the U.S. Supreme Court overturned a ban on a Nazi parade in a heavily Jewish suburb of Chicago. One of the sticking points: A $350,000 liability insurance policy requirement.
At the risk of brain explosion, the public is invited to read the legal arguments and Supreme Court opinion in the Bigfoot case, which will lead you down the path to legal Hell. Is Mount Monadnock a nonpublic forum, or a limited public forum, or a traditional public forum, or an especially unusual forum – or not much of a forum at all?
You’re free to venture an opinion, whether or not you’re wearing a funny costume. Something about “freedom of speech.”
