LACONIA – An attorney for William Baer, a Gilford parent accused of three counts of disorderly conduct for his alleged actions at a May School Board meeting during a discussion about a book assigned to his daughter, has filed a motion to dismiss all three charges.
Baer's attorney, Mark Sisti, breaks the charges into two separate categories. The first contains two alleged offenses – that he caused a breach of the peace by disrupting a School Board business meeting, and the second being that he refused to obey a lawful order issued by a peace officer to move from any public place. The second category is that Baer's actions did not rise to he level of disturbing the peace.
The Gilford Police Department, which is prosecuting Baer, has 10 days to file a response.
Baer was arrested at a May 5 School Board meeting which he attended to voice his opposition that his daughter, a student in the ninth grade, had been assigned to read book containing graphic sex scene between two teenagers, without the he or other parents being notified of the reading assignment.
Sisti argues the charges should be dismissed because each of these complaints seek a criminal penalty rather than a civil remedy. He said the prosecution seeks to limit the rights of Baer's free speech in public – something that lies at the heart of the First Amendment.
He said the speech occurred during a public hearing that is a "designated public forum" because it was open to facilitate public discourse. He said this type of speech can be limited by reasonable time, place and manner but only "where such regulation narrowly tailored furthers significant government interests and does not foreclose other opportunities for expression."
Sisti wrote that Baer was not just prohibited from speaking, but removed from the public event entirely. He noted that New Hampshire's history shows the citizenry places a high value on civic participation such that the Constitution includes provisions for open and public forums.
"The state alleges that the lawful order issued to Baer was one requesting his removal, not his silence or anything else," said Sisti. He said the Constitution goes further than the Right to Know law because it guarantees access to governmental proceedings and attendance at one cannot be unreasonably restricted.
He argues that Gilford Police Lt. Jim Leach's order to Baer to leave the meeting was unreasonable. He cited case law that says one cannot be punished for failing to obey the command of an officer is that command violates the Constitution.
He said Baer's arrest and removal cannot be reasonable because there are "less intrusive ways of maintaining order at a meeting" and Leach had two other less drastic measures available to him including, first asking him to be quiet, and then warning him if he did not do so, he would be removed.
Sisti said the discovery shows that the order to remove Baer originated from School Board Chair Sue Allen who also never warned him he could be removed.
"To allow this complaint to stand, this Court must find an implied authority to a board chair to command a police officer to remove a participant without warning that the person could be removed," he wrote.
He said the availability of other options coupled with Leach's decision not to use them must be weighed against the "strong constitutional protections" afforded to Baer as a member of a public forum.
As to the third complaint of "beach of peace," Sisti argues that no breach occurred.
He said disruption must be "narrowly tailored" so that it is necessary to avoid unreasonable interference. In this case, he notes that Baer's entire interruption lasted 25 seconds and did not interfere with the ongoing business of the School Board.
He notes that after Baer initially spoke, he sat through two additional speakers, and was responding to comments made by Joe Wernig, albeit without recognition. He also said the business of the board continued unabated.
Sisti argues that Baer did nothing to suggest he was going to cause a breach of the peace and was acting only as a concerned citizen.
In summation, Sisti quoted the late Supreme Court Justice Hugo Black who said, "... (the) policeman's club can take heavy toll on a current administration's public critics ... (c)riticism of public officials will be too dangerous for all but the most courageous."
"The School Board must tolerate mild interruptions without resorting to arrest or removal," Sisti said arguing all three charges should be dismissed.