By Melissa Russell, Granite State News Collaborative
A Nashua ordinance prohibiting “crude, vulgar, profane and/or obscene remarks” represents an unconstitutional violation of the First Amendment and should be repealed, according to the American Civil Liberties Union of New Hampshire.
The ACLU sent a warning letter to the Nashua Board of Aldermen in early May regarding the ordinance, passed in September 2022, stating it was a violation of New Hampshire residents’ right to peaceably assemble to petition their elected representatives.
A motion to amend the ordinance by deleting the prohibition of certain comments was on the agenda for the May 23 meeting, but it was not brought up. Mayor James Donchess stated that evening he would be meeting with the ACLU to discuss the ordinance. When reached for additional comment Donchess declined and referred questions to Corporation Counsel Steven Bolton.
According to resident Gary Braun, the Administration and Personnel Committee has tabled the question until August.
In the letter, ACLU staff attorney Henry Klementowicz stated while the city can limit time for public comment, can set rules preventing speakers from disrupting others and can require speech to be “orderly and peaceable,” it cannot constitutionally prohibit speech that is crude, vulgar, uncivil or profane.
A similarly worded ordinance was considered in 2020 but was not enacted at that time. The Board of Assessors has a similar prohibition in its bylaws.
Gregory Sullivan, president of the New England First Amendment Coalition, called the aldermen’s policy “bogus,” and said, “offensive speech is protected speech.”
“They (the aldermen) can do reasonable things. Time, place and manner restrictions are allowed so long as they are reasonable. They can restrict speakers to three minutes, but they can’t restrict speech they find offensive,” he said.
Bolton, in comments to the Granite State News Collaborative, said he strongly disagreed with the ACLU, adding, “If someone wants to express their opinion, they can do so utilizing the other millions of words in our language.”
Nashua resident Laurie Ortolano believes it is her long-standing beef with the city assessor and lawsuits citing other officials that led to the passage of the ordinance. In January 2021, Ortolano was arrested for trespassing at City Hall, following an episode in which she refused to leave the building, protesting a lack of responsiveness from Jesse Neumann, the city’s Right-to-Know attorney, according to The Nashua Telegraph. That paper reported Ortolano had a Right-to-Know lawsuit pending, accusing the city of withholding emails and other documents that she claimed to be public. Although Ortolano claimed her sit-in was “peaceful,” and that she “never raised her voice,” or “did anything to make anyone feel threatened,” city councilor Celia Leonard said her alleged refusal to leave the building despite multiple requests “created a hostile and threatening” situation. Leonard did not respond to a request for comment.
In a recent interview, Ortolano said she was the “first person arrested in City Hall for trespassing.”
A few months after the arrest, Ortolano attended a Board of Assessors meeting regarding abatements. She said her frustration over her own assessment led her to use objectionable language.
“I said I’m disgusted with what happened to me and I said it was the cu****est behavior I had ever seen. On July 22, at a finance meeting, the mayor cut me off and said ‘we will not tolerate criticism of employees; this has to stop, we’ve got to write a new public input policy to shut this down.’ I get three stinking minutes to talk and he interrupts me. I said, ‘shut your piehole, Mr. Mayor.’ I said it three times. The alderman next to me almost choked.”
Alderman John Sullivan was the sole vote against the ordinance and supports its repeal. He said his primary concern was “suppression creep,” and felt the city was trending against openness, transparency and free speech by discontinuing the use of Zoom for public meetings, which had been introduced during the COVID-19 pandemic, as well as not including letters from constituents in the public packet of information.
“I drew a line. People use bad language, but it is protected under the First Amendment. We live in a free society. It isn’t nice that people feel the need, but they are allowed to do it,” he said.
Alderman Alex R. Comeau supported the ordinance “reluctantly,” he said, because he felt it was appropriate to limit certain speech during hours when children might be watching the meetings broadcast on local cable stations.
“I don’t believe that prohibiting profanity is the same thing as viewpoint discrimination or prohibiting speech, because one of my constituents can still come to a meeting and tell me I’m stupid. We just can’t have them tell me I’m [expletive] stupid if we’re on TV,” he said.
He stated he supported repealing the language prohibition, in part because he feels it is his responsibility as an alderman to “keep the city out of court, especially given the city’s abysmal recent track record of court losses.”
If a constituent is upset and angry, Comeau said the board should consider the reasons for the anger and try to make improvements to the way the city operates, especially with respect to information and transparency.
“If someone comes to a meeting and chooses to use profanity, the chair of the meeting has the authority to cut off any speaker, so it seems we don’t need a codified ordinance to ask people not to curse,” he said.
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