Amid potential changes to state civil rights law, a bipartisan compromise emerges

After a Weare woman allegedly fired a gun at a car on her property in 2024 because the driver was Black, New Hampshire’s Department of Justice sought to take action on civil rights grounds. 

But the department didn’t pursue criminal hate crime charges against the woman, Diane Durgin. Instead, in addition to the criminal assault and threatening she already faces from county prosecutors, the state sued Durgin in March under the state’s Civil Rights Act. That law, a civil statute, can lead to a maximum fine of $5,000 and a range of court-ordered actions, but no jail time. 

In doing so, the department relied on a relatively obscure branch of state law. Created in 1999, the Civil Rights Act allows the Attorney General’s Office to take action against hostile behavior motivated by a person’s identity, and find civil judicial solutions in lieu of criminal hate crime charges. The department pursues about five to 10 such cases per year.

This year, that law has been the subject of political turbulence and unlikely compromise. In March, the Senate approved a bill that some said would weaken the Civil Rights Act, requiring the Department of Justice to prove a “substantial” level of hostility behind a perpetrator’s alleged actions to win a claim. 

In a rare move, the department spoke against the proposed changes — twice. Now, weeks of discussions between a key House Republican, a House Democrat, and the head of the state’s Civil Rights Unit have resulted in a version of the bill that supporters say avoids those concerns. That version, which passed the House last month, is awaiting approval in the Senate.

The arc of Senate Bill 464, from the Senate’s passage to the department’s public warnings to the efforts toward compromise, is unusual at a time of legislative partisanship. And to Sean Locke, the director of the state’s Civil Rights Unit, that careful approach to the civil rights statute is crucial. 

“It should be consistent,” he said in an interview. “One, just so it’s consistent for us to enforce it, but also to kind of provide that sense of safety and satisfaction to the public. They know this law is there. It’s not changing every couple of years.” 

Free speech concerns

The idea to change the Civil Rights Act emerged in part after a high-profile act of racism.

In July 2022, the white supremacist group NSC-131 hung a banner from a highway overpass with the message “KEEP NEW ENGLAND WHITE.” Later, the state Department of Justice used the Civil Rights Act to pursue fines against the members who hung the sign as well as court injunctions to bar them from doing so again. 

In its current form, the state’s Civil Rights Act allows the department to sue a person who has committed “actual or threatened” physical force, violence, or damage to property against another person if they can prove the perpetrator did so on account of the victim’s “race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability.” Those threats include communications “by physical conduct or by declaration” of an intent to inflict harm by some unlawful act “with a purpose to terrorize or coerce.”

Using the statute, the department attempted to prove that the defendants had committed the unlawful act of trespassing on state property by standing on the bridge without permission, and that the act had been done with the purpose to terrorize, motivated by their victims’ race. 

But the state Supreme Court ruled unanimously against the state, finding in January 2025 that the state had not established that the perpetrators knew they were trespassing, and that its use of the Civil Rights Act was an overreach that impinged on the defendants’ free speech. 

“We hold that, to state a claim for a violation of the Act predicated upon actual trespass on property, the State must establish that the actor, with knowledge that he or she is not licensed or privileged to do so, enters land in the possession of another or causes a thing or a third person to do so … and that the trespass was “motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability,” the decision states.

The ruling, a setback for the department, raised free speech concerns that in part prompted SB 464, according to Rep. Bob Lynn, a Windham Republican who worked on the bill. 

When he first introduced the bill, Sen. Daryl Abbas, a Salem Republican and the lead sponsor, said it was meant to address “inadvertent violations” of the Civil Rights Act. A person trespassing on property to take down a sign because the sign is racist could, theoretically, be charged even though the action is benevolent, because the statute does not specify that there must be hostile intent, Abbas said. 

As initially introduced, SB 464 required a person’s conduct to be “substantially motivated by hostility” to trigger the law, rather than the current requirement that it be “motivated” by a person’s characteristics. 

That stricter language was important to narrow and clarify the intent of the law, Abbas argued. 

A potential weakening

The Department of Justice quickly objected. 

For Locke, who has led the 8-year-old Civil Rights Unit since 2019, the Civil Rights Act is an important tool to allow the department to find “off-ramps” to address discriminatory behavior. It differs from the state’s hate crime laws, which allow for criminal charges against more serious offenses with a higher burden of proof.

Because the Civil Rights Act is civil, not criminal, it does not add to a respondent’s criminal record and it allows judges to set creative obligations, like community service work, donations to harmed organizations, injunctions, and restraining orders to keep offenders away from victims, and obligations to pay the victim damages, Locke said in an interview. The law is often used against high school students as a way to address discriminatory acts without invoking formal charges. 

The idea, Locke said, is to intervene early to stop a perpetrator from escalating their behavior. 

“What starts as maybe threats or lower-level acts of property damage or violence of lower severity can escalate over time if it goes unaddressed or unchecked,” he said. “What this statute kind of envisioned was creating a way short of the criminal process … to provide some protection for a victim of this behavior and their community.”

In testimony to Senate lawmakers, Locke said adding the word “substantially” would pose a high burden of proof, and potentially make the statute unworkable. The bill did not define what level of hostility would count as substantial, raising questions of vagueness, and it could be subject to differing interpretations by multiple courts. 

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Locke flagged another problem: the bill’s definition of “victim.” Under current statute, the Civil Rights Act can be used against acts of violence motivated by bias even if the direct victim of that violence was not the motivation. For instance, if a person shouted a racist slur at another person in public due to that person’s race, and then assaulted a bystander seeking to intervene, the current Civil Rights Law allows the Department of Justice to treat the assault as a racially motivated unlawful act, even though the victim of the assault was not targeted for their race. 

The proposed change in SB 464 would require that the victim be the direct object of hostility. That could stop civil rights actions in bystander assaults, and in cases of vandalism, such as when a perpetrator violates one person’s property rights to spray paint racist messages intended for someone else.

And Locke said introducing the word “hostility” could give people plausible deniability to argue their actions were not driven by hostility, even in cases of clear bias. 

“The concern we have is that 464 takes us in the wrong direction,” Locke testified to the Senate Judiciary Committee, speaking on behalf of the department. “The Civil Rights Act already covers a limited set of circumstances, and we’re reducing the protections that are afforded to the public to protect their civil rights from hate or bias-motivated violence, property damage, threats, or trespass.” 

The Senate was not persuaded; while the bill was originally sent to interim study, it was later revived on the Senate floor and it passed over to the House in a unanimous vote.

Legislative collaboration

When the bill arrived at the House, Locke continued to raise concerns. This time, Lynn, the House Judiciary Committee Chairman and a former state Supreme Court chief justice, perked up.

Lynn understood the motivation behind the bill, he said in an interview: to mitigate the concern that the Civil Rights Act could sweep up people who act benevolently, and to create a clearer protection around free speech. 

Lynn also agreed with the state Supreme Court’s ruling in the NSC-131 case, saying that while he abhors the message displayed on the banner, he believes the state went too far in trying to use the Civil Rights Act to limit free speech. 

But he was persuaded by Locke’s concerns, and he decided to look for a common ground and a way forward. Over a series of meetings, Lynn talked with Locke and Rep. Paul Berch, a Westmoreland Democrat and the ranking member of the Judiciary Committee.

Berch and other House Democrats had major qualms with SB 464. Raising the standard, Berch worried, could allow people to escape punishment. By centering the law on “hostility,” the bill was tying the Civil Rights Act violation to a person’s private emotional state, and not necessarily the full context of the act, he said.

“My point of view was that I wanted to ensure that bad actors could not avoid liability by admitting the conduct but denying hostility even where the conduct clearly targets a protected class.”

The meetings were friendly and productive. To Berch, both sides were trying to achieve a similar goal, just from two starting points: Democrats from the perspective of civil rights law enforcement, and Republicans from that of free speech. 

“We were looking at two different ends of the hot dog, so to speak,” he said.

A path forward

From Lynn’s perspective, the discussions helped achieve the bill’s narrow objectives while avoiding some of the major concerns.  “I think we worked together well,” he said. “We all gave a little and got a little.”

In the end, the House compromise amendment removed the requirement that a person be “substantially motivated by hostility” as well as the language limiting the law to actions taken directly against the target of discrimination.

Instead, the amended bill requires a person to be motivated “in part or in whole” by hostility, and it applies to actions or threats of three types of act: using unlawful force, committing an act of violence, and damaging property or trespassing. 

The new bill adds a clearer definition of what counts as threatening, clarifying that it must be a communication that a reasonable person, with reasonable knowledge, would view as a realistic threat that the person is capable of carrying out — even if the perpetrator does not intend to carry it out. Thus, the law could be used against someone calling in a bomb threat against a place or worship because a reasonable person would take that seriously. 

But the new amendment also includes a free speech protection, clarifying that the Civil Rights Act shall not be construed to prohibit speech or conduct protected under the free speech amendments of the state and federal constitutions.

Lynn says the compromise bill strikes a balance between punishing threatening speech and allowing expression, and that it protects satirical or rhetorical speech.

“If my wife says to me, ‘We’re having guests for dinner tonight — if you’re not home on time, I’ll kill you,’ does she really mean to threaten me? Of course not,” he said in a speech on the House floor. 

The compromise amendment — which Lynn introduced on the House floor — got near unanimous approval, passing 329-9. It now heads back to the Senate for a final, up-or-down approval.

Locke said he appreciated the collaboration. It was important, he said, “to avoid a statute like this becoming something (like): ‘OK, now the next time a different party is in political control, we’re now going to go back and try to make more changes.”

“Seeing this kind of overwhelming support really is kind of a potent answer to how seriously everyone takes these laws,” he said.