[Excerpt] “A car dealer in Concord, New Hampshire recently challenged the city zoning board‘s denial of its application to replace its existing readerboard (with manually changeable letters) with an electronic sign. The dealer argued that the city‘s zoning ordinance, prohibiting “[s]igns which move or create an illusion of movement except those parts which solely indicate date, time, or temperature,” constituted an unconstitutional restriction on free speech under the First Amendment. The trial court agreed, but the New Hampshire Supreme Court reversed, applying the Central Hudson test and finding that the ordinance reached no “broader than necessary to meet and advance [the city‘s] substantial interests of traffic safety and aesthetics.” Conspicuously absent from the dealer‘s argument, and thus from the State Supreme Court‘s opinion, was any reference to Part I, Article 22 of the New Hampshire Constitution: “Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.”
Carlson‘s Chrysler could have argued its case under the U.S. Constitution, the New Hampshire Constitution, or both. By choosing to assert only federal constitutional rights, however, it passed up two advantages. First, free speech rights may be greater under Article 22 than the First Amendment. Second, had Carlson‘s Chrysler prevailed in the state supreme court based on Article 22, the city would have been unable to appeal to the U.S. Supreme Court.8 Moreover, had Carlson‘s Chrysler asserted its free speech rights under both constitutional provisions and lost, it still would have been entitled to appeal to the U.S. Supreme Court.
This note explores the meaning of the free speech provision in Article 22 of the New Hampshire Bill of Rights, added in 1968—specifically, whether it should be interpreted to afford greater protection than the First Amendment. Part I briefly discusses the relationship between Article 22 and the First Amendment in light of Michigan v. Long (defining the U.S. Supreme Court‘s approach to state supreme court judgments) and State v. Ball (the New Hampshire Supreme Court‘s response to Long). Part II traces the origin of Article 22 as originally adopted as well as its modern free speech provision, and offers an overview of the existing body of relevant case law. Part III explores the meaning of free speech in Article 22 based on the text and history of the original article and the 1968 amendment, analogy to the liberty of the press and other constitutional rights, and relevant interpretations by other state courts. In Part IV, I conclude that the New Hampshire Supreme Court‘s commitment to the primacy of state constitutional protections, together with the strong language of the provision and persuasive authority from both the New Hampshire Supreme Court and other state courts, supports a robust independent jurisprudence for free speech under Article 22.”
Adam Rick, First Amendment, Second Fiddle? Free Speech in New Hampshire‘s Constitution, 7 Pierce L. Rev. 373 (2009), available at http://scholars.unh.edu/unh_lr/vol7/iss3/6