Attorneys for a white supremacist group active in New England told the New Hampshire Supreme Court late last month, that their hanging of a racist banner in Portsmouth is protected free speech, and that the government is selectively enforcing its Civil Rights Act.

In June 2022, members of NSC-131 briefly hung a banner on a highway overpass above Route 1 that read ‘Keep New England White.’ The group did not have a permit to hang the banner, and removed it shortly after law enforcement officers arrived. Months later, the Attorney General’s office filed civil rights charges against NSC-131 and Christopher Hood, the group’s purported leader, contending they trespassed onto public property and were motivated to do so by racial animus.

A lower court judge dismissed the case, ruling that the Attorney General’s office was using an overly broad interpretation of the trespassing law, and that the move was a chill on free speech. The state then appealed.

Before the state’s highest court on Thursday, June 27, William Gens, who is representing NSC-131, said the government is improperly targeting one specific message it happens to not like, while ignoring other banners, both real and hypothetical, that could be hung in similar places.

“If this banner was a blank banner, we wouldn’t be here,” said Gens. “If it said ‘Support Our Troops’ we probably wouldn’t be here. If it said ‘Black Lives Matter’ we wouldn’t be here, because this gives way to all sorts of selective enforcement.”

Gens warned that the statute could be “weaponized” by the government to silence voices, should the justices overturn the lower court’s ruling.

During oral arguments, state prosecutors told justices that the group trespassed onto public property, and that its messaging was clearly a threat to non-white motorists who saw the banner.

“This case is not about freedom of speech,” said Sean Locke, who oversees the Attorney General’s Civil Rights Unit. “Neither freedom of speech, nor any other principle of law, authorizes the defendants to intentionally affix these banners to government-owned property without some prior authorization.”

The ACLU of New Hampshire submitted a legal brief in the case, writing that while it found the messaging on the sign “abhorrent” it had concerns the state was stifling free speech by its interpretation of the trespassing statute.

The justices didn’t immediately issue a decision in the matter.

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