The Center for Competitive Politics filed a friend-of-the-court brief in a case involving court-imposed punishment of political speech following a vote over where to place a cell phone tower in Wolfeboro.
“Fining a company millions of dollars for engaging in the most basic level of political speech is outrageous and threatens the First Amendment rights of all New Hampshire citizens,” said Stephen Hoersting, the Vice President of the Center for Competitive Politics and the brief’s author. “Speech by a company addressing voters on an issue is clearly protected by the First Amendment. This was not an advertisement for cell phones; it was an appeal to the citizen-legislators of Wolfeboro.”
The case, Green Mountain Realty Corp v. The Fifth Estate Tower LLC (GMR v. Fifth Estate), involved competing proposals to build a cell phone tower, and the matter was put to a vote after competing educational campaigns by the two companies: mailings, newspaper and radio ads, flyers and other advocacy efforts. Voters rejected GMR’s proposal on election day (after previously rejecting Fifth Estate’s proposal), and GMR sued, alleging that Fifth Estate’s advocacy was not protected political speech but false commercial speech subject to the state’s Consumer Protection Act.
The judge in the case agreed with GMR and instructed the jury that the First Amendment was irrelevant because the speech was commercial, not political. Fifth Estate lost the case and is facing a $6.7 million penalty – each of the 3,337 postcards was considered a separate $1,000 violation, which was also doubled. The case is on appeal to the New Hampshire Supreme Court.
“Allowing the government to control political speech under the guise of protecting consumers from false claims about products and services would be a dangerous precedent for First Amendment rights in New Hampshire,” said Center for Competitive Politics President Sean Parnell. “For the ‘Live Free or Die’ state to have a free political process, companies communicating with voters about a pending political issue shouldn’t face million dollar fines.”
The Center for Competitive Politics is a nonprofit, nonpartisan organization dedicated to promoting and protecting the First Amendment political rights of speech, assembly and petition.
