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The only protestor convicted for protesting COVID-19 lockdowns in front of Gov. Chris Sununu’s home is taking his case to the New Hampshire Supreme Court.

Frank Negus Staples, aka Foot Loose, is appealing his conviction on one count of disorderly conduct for his role in the protests outside the homes of Sununu and Chief Justice Gordon MacDonald. He was among nine people arrested during the protests, and the only one convicted.

“We were all found not guilty of ‘picketing,’” Staples said. “I was found guilty of ‘disorderly conduct.’”

NHJournal reporter Chris Maidment was arrested during the protests and charged with picketing, despite identifying himself to authorities as a journalist on assignment. NHJournal earned a First Amendment award from the New Hampshire Press Association for its work on the story, and the charges were dismissed before the case went to trial.

MacDonald, who was New Hampshire’s Attorney General at the time of the protests, has recused himself from the case according to Staples. MacDonald’s Department of Justice was instrumental in creating the picketing ordinance used to charge the protestors.

“Gordon MacDonald has recused himself from the case due to his direct involvement in the creation of the town ‘picketing’ ordinance and how to enforce it,” Staples said.

The New Hampshire Supreme Court accepted Staples’ appeal as part of the dozens of cases accepted in November. A hearing date has not been set.

After Sununu started conducting government business from his home due to the pandemic, opponents of the governor’s COVID-19 policies started protesting in the street outside. Sununu and his neighbors expressed their unhappiness with the crowds of sign-waving demonstrators in their cul-de-sac, but the protestors were on public property.

In response, the town Board of Selectmen, including Sununu’s brother Michael, drafted an anti-picketing ordinance designed to discourage — if not prevent — the protests. Three members of the Sununu administration, including Department of Safety Commissioner Robert Quinn, testified on behalf of the protest ban at a December 8 select board meeting.

The language for the ordinance came directly from the Attorney General’s Office, according to emails obtained by NHJournal.

Concord attorney Seth Hipple, who represented several of the protesters, including Maidment, told NH Journal last year that the government is holding a losing hand.

“The prosecution’s case was a dumpster fire,” Hipple said.

None of the arresting officers were able to individually identify any of the protesters who were charged, and they were unable to specify what actions the protestors took that violated the law, according to Hipple.

Staples, who told NHJournal people do not like it when he gets loud, was a fixture at anti-COVID lockdown protests throughout the pandemic. He was among several people arrested at an Executive Council Meeting last year who were protesting a federal contract to pay for COVID vaccines.

Staples was also the lead protestor at the September 2021 Executive Council meeting that was shut down because of safety concerns.

Staples made statements to New Hampshire Department of Health and Human Services employees that they deemed threatening.The employees were unnerved and subsequently escorted to their cars by New Hampshire State Police Troopers. Staples, who was shouting and acting in an aggressive manner through the meeting denies he meant a threat when he shouted “we know where you live” to the DHHS employees.

Staples and several other protestors at the September 2021 Executive Council meeting were investigated by Attorney General John Formella’s office, but no charges were ever brought.

After 18 months, Newfields Police Prosecutor Michael DiCroce is finally giving up on the case against an NHJournal reporter who was charged with a crime while covering protests outside Gov. Chris Sununu’s house.

DiCroce said he was tired of losing.

“We’ve tried eight or nine of them before Judge (Polly) Hall and she’s found all of them not guilty,” DiCroce said. “I’m not going to waste my time prosecuting the one or two left.”

On December 28, 2020, Newfields police used a controversial new ordinance to ticket protesters gathered outside Sununu’s home. They also ticketed Chris Maidment, a NHJournal reporter at the time who was covering the protest. Maidment repeatedly informed authorities he was a reporter and his coverage of the protest appeared at NHJournal the next day. Still, DiCroce insisted on prosecuting the case and does not concede the police did anything wrong.

“Town officials knew he was a reporter. I spoke to the prosecutor myself,” said NHJournal Managing Editor Michael Graham. “We repeatedly requested they drop this case, and they repeatedly declined. The fact that they still won’t admit that arresting a reporter for doing his job is wrong — particularly when politics are at play — should concern every First Amendment supporter in New Hampshire.”

DiCroce declined to say why he persisted in prosecuting Maidment.

“That’s something you’ll have to ask State Police,” DiCroce said.

New Hampshire State Police were involved in the protests by providing security for Sununu. However, documents obtained by NHJournal through a Right to Know request show Newfields Police coordinated with State Police, sharing information on the anti-picketing ordinance, and coordinating the press release about the original arrests.

“It’s quite obvious this case was without legal merit and a blatant First Amendment violation,” said Maidment, who now works for the New Hampshire chapter of Americans for Prosperity.

Concord attorney Seth Hipple, who represented several people charged that night including Maidment, said the government had a losing hand from the start.

“The prosecution’s case was a dumpster fire,” Hipple said.

None of the arresting officers were able to individually identify any of the protesters who were charged, and they were unable to specify what actions the protestors took that violated the law.

“It seemed really clear to me throughout this case the focus of law enforcement was to shield (Sununu) from seeing anybody protesting in front of his residence,” Hipple said.

After Sununu began conducting government business from his home due to the COVID-19 pandemic, opponents of the governor’s COVID-19 policies shifted their protests to the cul-de-sac outside his home.  Sununu and his neighbors expressed their unhappiness with the crowds of sign-waving demonstrators, but the protestors were on public property.

In response, the town Board of Selectmen, including Sununu’s brother Michael, drafted an anti-picketing ordinance designed to discourage — if not prevent — the protests. Three members of the Sununu administration, including Department of Safety Commissioner Robert Quinn, testified on behalf of the protest ban at a December 8, 2020 select board meeting.

Hipple said the town used legal language that was constitutionally problematic in the ordinance. The way it was enforced and prosecuted by Newfields police was even more problematic.

“The fact they arrested a reporter and continued to prosecute a reporter who identified himself shows it has nothing to do with enforcing the law,” Hipple said. “It’s definitely true that the impetus for passing this ordinance was that they didn’t want to have protests where (Sununu) was conducting state business.

The language for the ordinance came directly from the Attorney General’s Office, according to emails obtained by NHJournal.

The process began with a November 24, 2020 email from Michael Sununu to Newfields Police Chief Nathan Liebenow regarding, “complaints I have received from several residents on Hemlock [Court] regarding the protests this past weekend,” and suggesting existing town ordinances “which we need to consider enforcing.”

Chief Liebenow the next day wrote Senior Assistant Attorney General Matthew Broadhead thanking him for “reaching out and offering your assistance on this matter.” The Attorney General’s Office usually responds to requests from local law enforcement rather than reaching out and offering assistance.

Chief Liebenow told Broadhead he had been “speaking with his Board in Newfields” about town ordinances that “are most relevant/applicable in our situation.”

On November 30, 2020, Broadhead responded by suggesting potential language for an anti-picketing ordinance he believed could pass court muster.

“Chief, FYI, in a U.S. Supreme Court case, Frisby v. Schultz… the U.S. Supreme Court upheld the following ordinance: ‘it is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the town of Brookfield.’ The court ruled that this ordinance does not violate the First Amendment,” Broadhead wrote.

That language was eventually adopted word for word by the Newfields select board. 

Sununu’s team has denied the governor had anything to do with the ordinance or its passage.

The New Hampshire Press Association gave NHJournal’s coverage of the story a “Free Speech” award earlier this month.

Maidment said he expects the involved parties to do the right thing.

“I expect a formal written apology from the New Hampshire State Police, Newfields Police, and Prosecutor DiCroce any day now,” Maidment said.

Gov. Chris Sununu likes free speech, the First Amendment, and podcaster Joe Rogan.

Donald Trump? Not so much.

In a radio interview Tuesday morning, the Republican governor told WGIR’s left-leaning talk host Chris Ryan he opposed attempts to silence media voices like Rogan’s, whether or not you agree with their viewpoints.

“Whether it’s social media, the mainstream media, or Joe Rogan,  sometimes you get a difference of opinion — you could call it misinformation — it comes from everywhere now. To say we’re going to become the ‘misinformation police’ because we don’t agree with what they say… that’s just a complete violation of the First Amendment and goes against everything America is about,” Sununu said.

Rogan, whose podcasts attract around 11 million listeners each, is the target of progressives who want his program de-platformed by the Spotify media platform. They are angry that he has interviewed COVID-19 vaccine skeptics and other controversial figures on his show, allowing them to share their opinions. Rogan has also expressed skepticism about public health policy on vaccines, and masks.

Among the progressives pushing to shut him down are aging musicians Neil Young and Joni Mitchell. A single episode of Rogan’s podcast draws more listeners on Spotify than a month’s worth of listeners to Young and Mitchell’s music — combined.

When Ryan argued that “mainstream media programming like his show should be viewed as more trustworthy than Rogan’s (“we have gatekeepers!”) and the confusion between what Ryan considers legitimate media and podcasts is a problem, Sununu pushed back.

“I disagree. I listen to Joe Rogan. I don’t consider him mainstream news. I like Joe Rogan I listen, I agree with something he says and disagree with others. But I would never compare him with Fox News. We have to make our own decisions about the weight we put on an individual’s words.”

Sununu also noted the irony of being asked about the Rogan controversy on CNN two days earlier.

“I thought the question was funny coming from the mainstream media — ‘what should we do about people who put out misinformation?’ I could have gone down a list of 100 things on each of the ‘mainstream’ news channels that are not true, or misinformation, or partisan leaning. But that [censoring speech] is a rabbit hole we’d never come out of,” Sununu said.

However, Sununu was less forgiving of the questionable claims coming from former President Donald Trump. Asked about Trump’s suggestion that participants in the January 6, 2021 Capitol riot should be pardoned, Sununu dismissed the idea as a fringe notion.

“I understand the former president has his opinion, but I don’t think it’s shared by pretty much anyone else. I don’t think anybody thinks those who assaulted the U.S. Capitol, assaulted police officers, should be pardoned,” Sununu said. “Especially in the GOP, we believe in accountability, the rule of law, and supporting law enforcement. It would send a terrible message not to support law enforcement.

“When you look at the issues that were going on at the Capitol on that day, if we’re going to take a pass on that, we’d be saying it’s OK to take a pass on those who assaulted police and burned down cities in 2020,” Sununu added.

“There’s still a rule of law that has to prevail.”

Recent polls show a majority of Republicans want the congressional investigation into the events of January 6 to end, and only 17 percent of Republicans believe the rioters are criminals. Another 66 percent say, “They had a point but went too far.”

It’s not often that the New Hampshire Legislature proposes a law that goes against a U.S. Supreme Court ruling. But that’s what Rep. Robert L’Heureux’s bill on flag desecration did.

The Merrimack Republican introduced House Bill 532 in the House Health, Human Services and Elderly Affairs Committee on Wednesday, which would have prohibited a person who desecrates a United States flag or New Hampshire state flag from receiving financial assistance from the state, including, but not limited to, “financial assistance to needy families, food stamps, and tuition assistance.”

“All we have to do is watch the news on tv and you see the American flag being burned, trampled on, and desecrated,” L’Heureux testified before the committee. “I fully agree and support freedom of speech. However, I don’t think I, as a private citizen or individual, should financially support someone who refuses to accept what we stand for.”

He said he understood that this bill was likely not going to pass and attorneys told him that it’s illegal. In fact, the bill received an “inexpedient to legislate” on a 18-1 vote. Two representatives switched their vote to go against the bill after the committee first voted on whether it “ought to pass.” Rep. Donald LeBrun, R-Nashua, was the only representative to fully support the bill after two rounds of voting.

Even though L’Heureux knew the bill was going to fail, he said he was trying to raise awareness for an issue.

“When we meet veterans and veteran survivors, we need to be able to tell them that we’ve done everything we can within the scope of the law,” he said.

The U.S. Supreme Court ruled in Texas v. Johnson (1989) and reaffirmed in U.S. v. Eichman (1990) that due to the First Amendment, it is unconstitutional, including federal, state or municipalities, to prohibit the desecration of a flag due to its status as “symbolic speech.”

However, restrictions may be imposed to regulate the time, place, and manner of flag desecration. For example, if the flag that was burned was someone else’s property, they could be charged for petty larceny or with destruction of property.

There have been several proposed Flag Desecration Amendments to the U.S. Constitution, which would allow Congress to enact laws prohibiting the act. To be added to the Constitution, it must be approved by a two-thirds vote of those present in both chambers and be ratified by at least three-fourths of the 50 state legislatures.

The closest the amendment ever came to getting through Congress was in 2006, when the House passed a resolution 286-130, but it fell short in the Senate by one vote, 66-34. The Republican nay votes included Sens. Bob Bennett of Utah, Lincoln Chafee of Rhode Island, and Mitch McConnell of Kentucky.

Despite flag desecration being illegal, an Associated Press analysis shows at least 40 states still have them, punishing those who burn or damage the U.S. flag or even state flags with fines and jail time. At least eight people have been arrested since 2007 for burning a flag while walking in traffic or hanging a torn flag from a tree. There are also some Southern states that extend the law to Confederate flags.

But a lot of lawmakers don’t see the need to remove the law from the books because it could be seen as politically motivated even though it’s already been illegal according to the highest court. Arkansas, Connecticut, Missouri, New Hampshire, and Rhode Island have been the only states that took any action to get rid of their flag-desecration laws. Alaska, Wyoming, and Wisconsin don’t have any laws about it.

Opponents of the proposed New Hampshire law found problems that it went against a Supreme Court decision, but also that it would take away state financial assistance from people.

“The fundamental problem with this bill is that is constitutes viewpoint discrimination,” said Gilles Bissonnette, legal director of the New Hampshire chapter of the American Civil Liberties Union (ACLU). “The state can’t withhold that benefit on the basis of someone’s viewpoint. You don’t lose your free speech rights when obtaining government assistance.”

Despite knowing that the bill was illegal, many Republican representatives agreed with the sentiment of the bill, and made that known throughout the hearing.

Rep. Mark Pearson, R-Hampstead, said the ACLU supports colleges and students that want “trigger warnings” to be included on class syllabi or on campus, so why shouldn’t they support people who find flag burning trigger-worthy?

Rep. Martin Bove, R-Londonderry, asked if he were to burn a Mexican or Saudi Arabian flag, would that be considered hate speech?

Bissonnette said the ACLU would consider that free speech.

Sarah Mattson Dustin, policy director for NH Legal Assistance, said the bill targeted low-income families who might not have alternative methods to disposing of flags in a proper manner.

“The bill would prohibit financial assistance that is not limited to Medicaid and other programs,” she said. “When you think about that in context, you think about someone in their youth, should we prohibit them from receiving these programs later in life?”

Mattson Dustin said one of her biggest issues with the bill was that the language was vague.

“The bill does seem directed toward people who are receiving assistance programs, and I don’t know it could apply to someone who would get a state contract,” she said. “The language is very broad.”

L’Heureux said he would be supportive if the committee drafted a resolution saying they believe flag desecration is un-American, and it was subsequently passed in both chambers of the Legislature. Or he would wait until the Supreme Court decision was overturned. Either way, he said he wasn’t done pushing this issue.

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