The New Hampshire Supreme Court determined that while people protesting parking enforcement regulations cannot be held liable for damages because their free speech activities are protected by the First Amendment, their method of protesting can be subject to limitations imposed by court order as a reasonable time, place and manner restriction on free speech.
The City of Keene employs Parking Enforcement Officers (PEOs) whose essential duties include patrolling the parking district, on foot or by vehicle in an irregular pattern, issuing tickets for all violations of the City Parking Ordinance. A Petition was brought by the City to obtain an injunction against James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, Graham Colson and Pete Eyre (hereinafter referred to as “Keene Defendants”) to prevent those individuals from taunting, harassing and intimidating the PEOs in the performance of their duties. The City also sought money damages under a theory of intentional interference with contractual relations. The apparent object of the Keene Defendants was to protest the City’s parking ordinances and parking fine assessment system by interceding on behalf of persons about to receive parking tickets. This intervention was carried out by shadowing the PEOs in the areas of downtown Keene where parking was controlled by assembling in groups of two to five people and by putting coins into expired meters in the vicinity of the PEOs as they checked for parking violations and issued parking tickets.
The Cheshire County Superior Court dismissed the City’s petition because of unconstitutional interference with the First Amendment rights of the Keene Defendants. On appeal the NH Supreme Court agreed with the trial court that the First Amendment bars the City from pursuing a damage claim under a theory of tortious interference with contractual relations. However the NH Supreme Court did agree with the City that it can pursue an injunction against the Keene Defendants for harassing the Parking Enforcement Officers as a time, place and manner restriction on the exercise of free speech.
Citing decisions of the US Supreme Court, the NH Supreme Court ruled that even protected speech is subject to reasonable time, place and manner restrictions. Because the Superior Court did not engage in an adequate assessment of the governmental interests of the City to protect its public employees from harm due to the harassment by the Keene Defendants, and whether those interests are sufficient to warrant a properly tailored injunctive order, the Supreme Court remanded the case back to the Superior Court. In remanding the case the Court noted that any injunction against the activities of the Keene Defendants must burden no more speech than necessary to serve a significant governmental interest.