N.H. Supreme Court protects political speech rights

In an opinion issued today, the New Hampshire Supreme Court overturned a lower court ruling that stripped a cell phone tower company of its First Amendment rights by subjecting its political speech to the state’s Consumer Protection Act.

“This ruling vindicates the First Amendment rights of companies to speak out on politics, allowing citizens to decide the merits of proposals,” said Stephen M. Hoersting, the vice president of the Center for Competitive Politics and the author of a friend-of-the-court brief in this case. “In New Hampshire, small businesses no longer have to worry that their competitors could use commercial speech codes to silence honest debate over political issues.”

In Green Mountain Realty Corp. v. The Fifth Estate Tower LLC (GMR v. Fifth Estate), the two companies offered competing cell tower proposals to citizen-legislators in the New Hampshire town of Wolfeboro. The companies sent mailings, bought newspaper ads, aired radio spots, distributed flyers and sent representatives to town hall meetings.

On Election Day, the voters rejected GMR’s proposal (after previously rejecting Fifth Estate’s proposal). GMR sued Fifth Estate under the theory that its advocacy on the issue should be subject to the limitations of the state Consumer Protection Act (CPA). For example, GMR complained that a postcard sent by Fifth Estate misrepresented the size of the planned GMR cell tower as too large (the expert who made that determination also found that GMR misrepresented the size of its tower as too small).

Fifth Estate lost the case in trial court, and the judge imposed a staggering $6.7 million penalty (Fifth Estate grosses less than $100,000 per year). The judge considered each of the 3,337supposedly skewed postcards as a separate violation ($1,000 each); then, he doubled it.

Fifth Estate appealed the case to the New Hampshire Supreme Court. The court concluded that a law regulating “unfair or deceptive” commercial speech did not apply in a political speech context (the court did not reach the question of whether the speech was actually “unfair or deceptive.”).

“[W]e conclude that Fifth Estate’s ‘mere attempts to influence’ the passage of the warrant articles does not violate the CPA, even if, as Green Mountain alleges, Fifth Estate’s sole motive was to eliminate Green Mountain as a competitor,” wrote Justice Linda Dalianis in the 11-page opinion.

“We are grateful the New Hampshire Supreme Court rightly recognized the speech as statements to voters in a pending election and as a petition to citizen-legislators for a redress of grievances,” Hoersting said. “Consumer protection statutes cannot punish political speech, no matter how much a businessman may hope an election result might aid his business, without violating the First Amendment rights of all citizens.”

The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.

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