In New Hampshire, there are still no statewide laws ensuring the fair and equal treatment of transgender people. But Freedom New Hampshire aims to change that. Join the diverse coalition of transgender Granite Staters and their allies and help fight for fair and equal protections for trans people under the law.

Add your name in support of the Freedom New Hampshire campaign and fair and equal treatment of transgender people.

125 Water Street, Exeter

7:00 pm

Opening Commentary by Devon Chaffee, Executive Director, ACLU of NH

Introduction of Books and Readers by Pat Yosha, ACLU of NH Board of Directors

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• THE GIVER by LOIS LOWRY
  • Reader – Ben Gorman
• THE KITE RUNNER by KHALED HOSSEINI
  • Reader – Ann Scheiber
• KAFFIR BOY by MARK MATHABANE
  • Reader – Eleanor Dunfey-Freiburger
• BLACK BOY by RICHARD WRIGHT
  • Reader – Kim Casey
• SATANIC VERSES by SALMON RUSHDIE
  • Reader – Robert Azzi
• THE BIBLE by numerous authors
  • Reader – Rev. Robert Thompson

Please click here to purchase tickets

When Barbara Keshen accepted ACLU of NH’s offer to be our staff attorney in 2006 she wasn’t sure one lawyer could significantly impact civil rights laws in New Hampshire. Her years as a New Hampshire Public Defender and as an assistant Attorney General prepared her well for the landmark cases she became known for. During her seven years with us, Barbara took on the most difficult cases as well as fundamentally important but unpopular ones.  Her victories and challenges improved our civil justice system and preserved constitutional rights.

Demetria McKaig endured a four-year long ordeal for doing her job. In her case, that meant protecting the rights of a pregnant high school teenager and successfully challenging the school board’s retaliatory actions all the way up to the state Supreme Court. This case started in 2012 when a Farmington High School student told Demetria, her school counselor, that she was pregnant and wanted to have an abortion.  A dispute between Demetria and the school principal about the student’s legal rights led to the involvement of the ACLU of NH, which was ultimately able to protect the student’s rights.

Four months later however, Demetria was notified by the school superintendent that her contract was not renewed because of her efforts to help the student. In April of this year, the state Supreme Court ruled that Demetria be reinstated because the school’s retaliatory non renewal decision was inappropriate.

Susan Arnold has been active in the pro-choice movement in New Hampshire for more than three decades. She began as a Field Organizer for NARAL New Hampshire and later was promoted to Political Director. One of Susan’s most impactful achievements was co-directing a phoning project to identify 20,000 pro-choice Republican and Independent female voters for the 1992 presidential election.  Susan was NARAL’s primary legislative lobbyist and developed a bipartisan legislative caucus to defeat anti-choice legislation. She was elected to NARAL New Hampshire’s Board of Directors in the late 1990s, around the time U.S. Senator Jeanne Shaheen hired her as her Director of Policy.   Susan has been the Chair of NARAL Pro-Choice New Hampshire’s Board of Directors for more than a dozen years. She leaves a strong legacy of supporting pro-choice legislators and leading the charge to protect the reproduc
tive rights of women in New Hampshire.

This case presents the important question of how New Hampshire courts should balance three competing constitutional rights—the victim’s constitutional right to privacy, the public’s right to access government records under Part I, Article 8 to the New Hampshire Constitution, and a defendant’s right to a public trial under the Sixth Amendment and Part I, Article 15 of the New Hampshire Constitution—in determining whether rape-shield proceedings and related documents concerning a victim’s prior consensual sexual activity should be made public.   The ACLU-NH makes four arguments in its brief.

First, Rule 412 and RSA 632-A:6, II apply to appellate proceedings before the New Hampshire Supreme Court.  Thus, Rule 412’s important presumption that proceedings addressing the admissibility of a victim’s prior consensual sexual activity be heard confidentially “during a hearing in chambers” applies equally before the Supreme Court, just as it applies before New Hampshire trial courts.

Second, while Rule 412’s “hearing in chambers” language cannot be viewed as a per se rule requiring that all rape-shield hearings be held in a closed courtroom, see State v. Howard, 121 N.H. 53, 59 (1981), nonetheless a rape-shield hearing, both at the trial court level and on appeal, should generally be conducted in a closed courtroom absent compelling reasons for public access.  It should be the rare case in which a rape-shield hearing is opened to the public.  This is because, generally, the victim’s constitutional right of privacy at a rape-shield hearing is compelling and outweighs the public’s and defendant’s more modest interests in public access.  Public access to a Rule 412 hearing is unlikely to prejudice the defendant’s rights.  Regardless of whether the hearing is public, the defendant will, as a matter of due process, still be permitted to argue for the admissibility of the information in question.  And if the information is ultimately deemed admissible, then the defendant can use the information at a public trial.  Meanwhile, if a rape-shield hearing before the trial court or on appeal is opened to the public, it will cause the very damage that Rule 412 and the rape-shield statute seek to prevent—namely, public embarrassment, shame, and humiliation caused by the public disclosure of the victim’s intimate relations that presumptively have no bearing on the criminal case.

Third, and relatedly, since a Rule 412 motion is generally to be heard “during a hearing in chambers,” New Hampshire trial courts and the Supreme Court should provisionally seal the record of the rape-shield hearing proceedings—including the written briefs, affidavits, transcripts, appendices and any other information disclosing the victim’s prior sexual history—absent compelling reasons for public access.  This provisional sealing should remain in effect until a final determination has been made as to whether the information is admissible at trial, as the question of admissibility will be, in the overwhelming number of cases, dispositive as to whether the victim’s prior consensual sexual activity presented in the rape-shield hearing should be publicly available.  Only after the court makes an admissibility determination can the court fully balance the interests of the victim, the public, and the defendant in deciding how this information should be treated.

If documents concerning the victim’s prior sexual history are inadmissible, then these documents, as well as the briefs and appendices, should generally remain sealed.  The information will have no bearing on the defendant’s guilt or innocence, thus rendering minimal the public’s interest in disclosure and the defendant’s interest in public access.  Conversely, the release of this inadmissible information could have a devastating impact on the victim’s privacy rights.  Perhaps even worse, disclosure would create an environment where victims of sexual assault will not report these crimes out of fear that their irrelevant prior sexual history will become public knowledge.  Where the victim’s prior sexual history is inadmissible, it should be the rare case in which this information is unsealed and released to the world.

If the defendant is able to overcome the rape-shield statute’s presumption that a victim’s prior sexual history is irrelevant, then the calculus changes.  After the court deems this information admissible, these documents, as well as the briefs and the appendices, should generally be unsealed but only (i) if the defendant or a third party requests that the Court unseal this information, and (ii) after giving the State and the victim notice and an opportunity to be heard as to why the documents should remain sealed—a requirement that is mandated as a matter of procedural due process.  A court’s finding that the defendant has overcome the rape-shield statute’s presumption of irrelevance (and is therefore entitled to present this information to a jury that will adjudicate guilt or innocence) significantly enhances the public’s and defendant’s respective interests in disclosure.  Undoubtedly, the victim’s privacy interest in this information is still strong.  But when such information is deemed admissible despite the protections of the rape-shield statute, such privacy interests must generally give way to the defendant’s rights under Article 15 and the compelling principle embedded in Article 8 that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”

Fourth and finally, if a trial court or the Supreme Court contemplates opening to the public a rape-shield hearing or unsealing documents concerning a victim’s prior sexual history, the victim is entitled to process—particularly, notification and an opportunity to be heard—before a final decision is made on disclosure.  This is because a court’s decision to disclose this information not only implicates the victim’s constitutional right to privacy recognized in Howard, but also the victim’s right to be free from reputational harm and social stigma.

Legal Documents: ACLU-NH Amicus Brief

Earlier this year, NARAL Pro-Choice NH’s board decided after months of deliberation to dissolve the New Hampshire affiliate due to persistent financial challenges. Speaking on behalf of the NARAL Pro-Choice NH board, former chair Susan Arnold stated “We are confident in the leadership and expertise of ACLU of NH’s Reproductive Rights Initiative and hope our friends and supporters will continue their commitment to defend reproductive rights in New Hampshire.”

“TG-NH (TransGender New Hampshire) stands behind Governor Hassan’s decision to create a non-discrimination policy that is inclusive of our state’s transgender employees. Transgender individuals are our neighbors, our friends and our co-workers. They are an intrinsic piece of the fabric of our state and are integral contributing members of our society. Because transgender individuals face potential discrimination outside of the protections that were previously afforded, this law will help to add necessary protections to ensure that the current and future contributions of this portion of our diverse community are fully preserved.” – Christen Bustani, TG-NH Steering Committee Co-Chair, PFLAG New Hampshire

Contact:             Gilles Bissonnette, Esq., ACLU-NH Legal Director, gilles@aclu-nh.org

Concord, NH –The ACLU of New Hampshire (“ACLU-NH”) has joined a federal civil rights lawsuit as counsel for Alfredo Valentin, who was wrongly arrested for criminal wiretapping simply because he used his phone to record two Manchester police officers while they were performing their official duties on the public street outside Mr. Valentin’s home.  This arrest violated Mr. Valentin’s First and Fourth Amendment rights.  More on this case can be found here: http://aclu-nh.org/valentin-v-city-of-manchester/.

On May 6, 2016, the ACLU-NH filed a motion seeking judgment against the two Manchester police officers for violating Mr. Valentin’s First Amendment rights.

As the First Circuit Court of Appeals has explained in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) and Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), a person has a clearly-established First Amendment right to both video and audio record police officers engaged in official duties in public places provided that the recording does not interfere with the officers’ performance of those duties.  This First Amendment right exists regardless of whether the police officer being recorded consents to the recording and regardless of whether the recording is done openly.  Following the Glik decision, in a March 22, 2012 memorandum, the New Hampshire Attorney General’s Office explained this legal principle to all law enforcement agencies in New Hampshire and explicitly warned these agencies about the consequences of ignoring it.

In arresting and charging Mr. Valentin on March 2, 2015, the Defendants blatantly violated this clearly-established legal principle. Indeed, the police reports and press release that document Defendants’ decision to arrest Mr. Valentin in this case do not dispute the fact that Mr. Valentin was simply in a public place recording law enforcement officers without interfering with their duties.  Manchester ultimately dismissed this wiretapping charge on May 15, 2015. Unfortunately, by that time, Defendants’ unlawful decisions to arrest and charge Mr. Valentin had already inflicted tremendous injury, including the loss of Mr. Valentin’s career.

Shockingly, even in the face of this clearly unconstitutional arrest, the Hillsborough County Attorney’s Office then elected to further prosecute Mr. Valentin for a misdemeanor violation of the wiretap statute in an indictment issued on June 18, 2015. The Hillsborough County Attorney’s Office newly contended in the indictment that Mr. Valentin’s recording was done “while trying to hide the telephone from view.” Defendants have reasserted this “secret recording” argument as a defense in this civil rights lawsuit.

However, Mr. Valentin was not secretly recording. But even if he was, the First Amendment right to record law enforcement extends to both open and secret recordings of police officers performing their duties in public. In fact, secret recording is a key component of this First Amendment right. It is the only way that individuals who are too afraid to openly record police officers can exercise their constitutionally-protected rights, and it is a critical tool to gather accurate information about official government activity.

The Hillsborough County Superior Court (Northern Division) agreed. In an October 21, 2015 order dismissing the criminal wiretapping indictment, that Court held that “the First Amendment protects secretly filming police in public, for the reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.”

“Essentially, Mr. Valentin was arrested and charged twice because he chose to exercise his constitutionally-protected right to record the police,” said Gilles Bissonnette, Legal Director for the ACLU-NH.  “We need to encourage more citizens to do what Mr. Valentin did.  Here, the officers’ decision to arrest and prosecute him is indicative of a broader, troubling trend in which police continue in a variety of ways to hinder people’s right to record their work in public.”

“The right of citizens to observe and record the police is a critical check on the use of power and force,” reiterated Bissonnette.  “The police need to understand that individuals who are recording their work without interference have a constitutional right to do so, and it is not cause for their arrest.”

In the lawsuit, Mr. Valentin seeks declaratory and injunctive relief to stop the City of Manchester from illegally enforcing New Hampshire’s wiretap statute to violate the First and Fourth Amendments, as well as damages for the violation of Mr. Valentin’s constitutional rights.

“I am so happy that my case is finally over,” stated Mr. Clay.  “It was embarrassing to be arrested and prosecuted for four months simply for engaging political speech.  As a result of my February 2015 arrest, I have not attended local board meetings out of fear that I would be arrested and prosecuted again.  I feel like I can now attend and exercise my free speech rights without harassment and prosecution.”

During the February 3 Board meeting, Mr. Clay was given the opportunity to speak on any issue for 5 minutes as part of the Board’s policy of “provid[ing] the Board with an opportunity to receive directly from citizens concerns, desires, or hopes they may have for the community.”  During his remarks, Mr. Clay asked all Board members to resign for their “poor actions as selectmen,” “poor decisions,” and “continued violations of the citizens’ rights here in Alton.”  His remarks referenced, in part, his belief that the Board has violated New Hampshire’s Right-to-Know law by holding “workshop” sessions at odd hours of the day and making decisions during them that were not transparent.  He did not raise his voice or use any profanities.  His speech was not disruptive.

Approximately 40 seconds into Mr. Clay’s speech, one Board member interrupted Mr. Clay, called the remarks “character assassination,” and requested a “point of order.”  The Board Chairman recognized the request and ultimately proposed a “point of order” to “clos[e] down public input” because of the “libelous” and “defamatory statements made by Mr. Clay.”  The 5-member Board then, with no dissenters, immediately approved the “point of order” closing down public input.  All of this occurred within the first 2 minutes of Mr. Clay’s allotted time.  Because Mr. Clay was speaking peacefully on matters of public concern within his 5 minutes of allotted time, he continued speaking.  As a result, 4 minutes into his remarks, he was arrested by the Alton Chief of Police.  A video of this incident can be found at http://youtu.be/RYnSJZTFghY.

On February 23, 2015, the Town of Alton filed two complaints against Mr. Clay alleging disorderly conduct.  Each was charged as a class B misdemeanor, which is punishable by a fine of up to $1,200.  On March 10, 2015, the ACLU-NH  wrote the Town of Alton on Mr. Clay’s behalf explaining that the Town, in suppressing Mr. Clay’s peaceful political speech, engaged in impermissible censorship in violation of the First Amendment.   Despite the ACLU-NH’s letter, the Town of Alton continued to prosecute Mr. Clay for one count of disorderly conduct.

On June 9, 2015, the Laconia Circuit Court dismissed the criminal charge, calling Alton’s actions “pure censorship” in violation of the First Amendment.  On July 14, 2015, Mr. Clay filed a federal civil rights lawsuit against the Town of Alton.  As part of the settlement in this case, Alton denies liability.

“In a free society, governmental officials are required to tolerate harsh criticism and even a demeaning attitude towards them—including viewpoints that can feel like ‘character assassination’—and cannot discriminate based on these critical viewpoints,” stated Mr. Bissonnette.  “Speech directed to and about the government is singled out for protection because speech lies at the very heart of the First Amendment,” added Mr. Bedrick.

PRESS RELEASE

April 20, 2016

NH House Votes to Kill a Bill to Give Legal Rights to a Fetus

Concord, NH – Today the New Hampshire House voted non-concur on a Senate amendment to a bill (HB 560) that would have put the rights of pregnant women at risk by establishing separate, legal rights for a fetus. In voting non-concur, the House effectively struck down HB 560 for the duration of the 2016 legislative session.

If enacted, HB560 would have established a dangerous precedent in New Hampshire law by treating a fetus as having legal rights separate and distinct from a woman. This bill is part of a national anti-choice strategy ultimately targeted at overturning Roe v. Wade. The New Hampshire legislature has repeatedly rejected similar bills over the past two decades. In 2012, Governor Lynch vetoed a similar bill that did pass.

“New Hampshire law already recognizes violent crimes resulting in loss of a pregnancy. Our State imposes enhanced penalties when criminal acts result in miscarriage or stillbirth,” stated Devon Chaffee, Executive Director of ACLU of New Hampshire. “We commend those New Hampshire legislators who rejected this HB 560 because it is inconsistent with existing New Hampshire law and because it dangerously restricts rights of pregnant women.”

“For more than forty years, the U.S. Supreme Court has affirmed that under Roe v. Wade, the Constitution protects every woman’s right to make her own personal medical decisions about abortion. HB 560 would have opened the door to pregnant women being targeted for their behavior during pregnancy. Under similar laws in other states, even those that exempt women from criminal liability, pregnant women are more likely to be punished for behaviors that are not criminalized for other people,” said Susan Arnold, Board Chair of NARAL Pro-Choice New Hampshire.

New Hampshire has a strong tradition of respecting women and doctors to make personal, private decisions about pregnancy and childbearing. The Granite State currently has some of the best public health outcomes in the country for women, including the best perinatal and maternal health outcomes. The defeat of HB 560 helps preserve this legacy by blocking legislation that is not only unnecessary, but would have put women’s choice at risk.

# # #

NARAL Pro-Choice New Hampshire, is NH’s largest grassroots organization dedicated solely to reproductive rights. NARAL-NH’s develops and sustains a constituency that uses the political process to guarantee every woman the right to make personal decisions regarding the full range of reproductive choices, including preventing unintended pregnancy, bearing healthy children, and choosing legal abortion.

The American Civil Liberties Union of New Hampshire is a nonprofit, nonpartisan membership organization dedicated to preserving the individual rights and liberties guaranteed in the Bill of Rights and the New Hampshire Constitution. The ACLU of NH engages in litigation, legislative advocacy, grassroots organizing, and education campaigns. Follow them on Facebook and Twitter. 

As the First Circuit Court of Appeals has explained in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) and Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), a person has a clearly-established First Amendment right to both video and audio record police officers engaged in official duties in public places provided that the recording does not interfere with the officers’ performance of those duties.  This First Amendment right exists regardless of whether the police officer being recorded consents to the recording and regardless of whether the recording is done openly.  Following the Glik decision, in a March 22, 2012 memorandum, the New Hampshire Attorney General’s Office explained this legal principle to all law enforcement agencies in New Hampshire and explicitly warned these agencies about the consequences of ignoring it.

In arresting and charging Valentin on March 2, 2015, the Defendants blatantly violated this clearly-established legal principle. Indeed, the police reports and press release that document Defendants’ decision to arrest Valentin in this case do not dispute the fact that Valentin was simply in a public place recording law enforcement officers without interfering with their duties.  Manchester ultimately dismissed this wiretapping charge on May 15, 2015. Unfortunately, by that time, Defendants’ unlawful decisions to arrest and charge Valentin had already inflicted tremendous injury on Valentin, including the loss of his career.

Shockingly, even in the face of this clearly unconstitutional arrest, the Hillsborough County Attorney’s Office then elected to further prosecute Valentin for a misdemeanor violation of the wiretap statute in an indictment issued on June 18, 2015. The Hillsborough County Attorney’s Office newly contended in the indictment that Valentin’s recording was done “while trying to hide the telephone from view.” Defendants have reasserted this “secret recording” argument as a defense in this civil rights lawsuit.

However, Valentin was never secretly recording. But even if he was, the First Amendment right to record law enforcement extends to both open and secret recordings of police officers performing their duties in public. In fact, secret recording is a key component of this First Amendment right. It is the only way that individuals who are too afraid to openly record police officers can exercise their constitutionally-protected rights, and it is a critical tool to gather accurate information about official government activity.

The Hillsborough County Superior Court (Northern Division) agreed. In an October 21, 2015 order dismissing the criminal wiretapping indictment, that Court held that “the First Amendment protects secretly filming police in public, for the reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.”

Accordingly, Valentin seeks declaratory and injunctive relief to stop the City of Manchester from illegally enforcing New Hampshire’s wiretap statute to violate the First and Fourth Amendments, as well as damages for the violation of Valentin’s constitutional rights.

On May 6, 2016, Valentin filed a motion seeking judgment against the two Manchester police officers for violating his First Amendment rights.

Legal Documents: Amended Complaint; Valentin Motion for Summary Judgment; Manchester Objection to Motion; Valentin Reply; Supplement