Free Speech Violation is Claimed at Hood Polls

The Derry Town Council will investigate what went wrong in an incident at Gilbert H. Hood Middle School on primary election day, Sept. 9.

Two residents and Moderator Margaret Ives spoke to the issue in the Public Forum of the Sept. 16 meeting.

Michael Layton and Katherine Prudhomme-O’Brien allege First Amendment violations at the polling places regarding signs they displayed concerning former State Senate Dist. 19 candidate James Foley. Foley had suspended his campaign the weekend before the election, after responding to allegations of misconduct in his past. Both Layton and Prudhomme-O’Brien created homemade signs that said, “Foley Dropped Out.”

“We were told that our signs were unlawful,” Layton told the Council. “Margie told me that it was wrong and that she had received the information from the Attorney General’s office.” In particular, Layton said, he was told he couldn’t have a sign that said “Foley Dropped Out.”

Layton and Prudhomme-O’Brien said their signs were informational in nature and that they hoped to inform residents to vote for someone else. Layton expressed amazement that “someone couldn’t hold a sign that said what was going on.”

Council chair Mark Osborne asked if Layton was asked to change the content of his sign.
Layton said free speech was still protected under the U.S. and New Hampshire Constitutions, and a homemade sign should be protected under that.

Prudhomme-O’Brien, who is a Republican candidate for state representative, said she made the sign to help direct voters, who she said may have been confused if they hadn’t heard about Foley. And she used the phrase “Foley Dropped Out” because reproducing his full media statement would have been “cumbersome.”

She also defended her action by saying that despite his withdrawal, new “Foley” signs were popping up at the election sites.

“People were thanking me for letting them know,” she said.

According to Prudhomme-O’Brien, she left her sign briefly outside the Hood gym so she could go inside and vote.

When she came out, it was gone. “Margie said Town Clerk Denise Neale put it in the trash,” Prudhomme-O’Brien said.

Ives introduced Prudhomme-O’Brien to Assistant Attorney General Michael Brown, who said she could not put up a sign on public property. Prudhomme-O’Brien said she pointed to the 30 to 40 other signs on stakes around Hood, and said that using that rule, they should all have been removed.

Ives called the Attorney General’s office, according to Prudhomme-O’Brien, and was instructed that all the signs should be removed from the school property. Derry police personnel proceeded to remove all the signs, Prudhomme-O’Brien said. Prudhomme-O’Brien then took her “Foley” sign and moved across the street to private property, where she continued to hold it.

Prudhomme-O’Brien alleges that her free speech rights were violated through the incident.

Ives took the microphone to observe that “Posting signs and holding signs are two very different things. We’ve had years of problems with this.

“We tell people they have to hold their signs,” Ives said. She confirmed that she had called the Attorney General’s office and was told to remove all signs posted on school property.

Ives observed that there had been an issue two elections prior, where residents expressed concern about “running a gauntlet” of candidates and their supporters. “We don’t want people to feel there’s a gauntlet,” she said.

“We believe in free speech and we all applaud that,” Ives said. “But we also need to honor the people who come out to vote. The signs need to be held.”

Councilor Al Dimmock said sometimes the election team goes too far. Frequently a candidate’s supporter will drop off a pile of signs, to be held by the faithful, and go off and deliver another pile to another polling place. He was at one voting site at 6 a.m., he said, and noticed a pile of signs for a candidate. “Someone came out and made them pick them up,” he said, adding that the signs were intended to be held by supporters.

Osborne expressed concern about the allegations and the incident. “I am happy you brought this to our attention,” he said. “As a Council, we are committed to free speech. We need to be very clear – you cannot control the content of a message.”

He said the Council would have an answer by its next meeting.

Ives said the Council and her election team needed to get together before the November general election and work out some of the problems. “We need,” she said, “to have a conversation.”

In a separate phone interview, Ives said the sign was removed by Neale because it was an unattended sign on public property. Neale referred all questions to the Attorney General’s office.

Foley still won the town vote, although he lost the Republican primary Dist. 19 race to Regina Birdwell of Hampstead. District 19 covers Windham, Hampstead and Derry.