22 December 2006

Will there be a protracted First Amendment Federal Court battle over free speech in Nashua schools?

It appears that way, if the Board accepts Attorney Flygare's suggestion. Read the comments, to see what Attorney Flygare advised the Board in this issue, as well as my comments relative thereto, noting that he and Attorney Loughman of course have a pecuniary interest in the matter because it is doubtful that Attorney Bennett would argue against his own 5 page legal opinion.

And remember this fact, which Attorney Flygare's opinion wholly ignores, from the post, "Vagalebre is worthless in the face of a Constitutional challenge..."
Nonetheless, the court concludes that the policy is
valid as a reasonable time, place, and manner restriction governing the special meetings for the reasons discussed infra, and because the policy leaves open the opportunity for the public to otherwise speak at the regular meetings.

I specifically asked the Nashua Board if there were other opportunities in this instance and the answer was an unequivocal "no."

Again, why the push to silence the public in New Hampshire, the "Live Free or Die" State? It appears that some elected officials would rather active dissenters just go ahead and die, doesn't it?

I shall await the Board's decision, but I'm calling the ACLU to have an intake form at the ready for us to consider our options.

PS: Attorney Flygare says it is not uncommon for judges to reach differing conclusions, but that statement ignores the major factual distinction detailed above. And I can't wait to see if he finds any other case in the Country since 1997 to support Vagalebre, while we've got not just one, but dozens of others coming down in our favor. That's because of:

1) The factual distinction, and;
2) The correctness of our position.

1 comment:

Christopher King said...

If the Board accepts Attorney Flygare's opinion it appears that there will be a Federal Court battle, long and protracted, from which he and Attorney Loughman have pecuniary interest.

I have reviewed Attorney Flygare's opinion, which entirely ignored the salient issue I presented in my blawg entry, i.e. the fact that the Vagalebre Plaintiff's had another avenue open to speak to the Board at regular meetings.

In the present case I have it on video that no such opportunity exists. Again:


So I therefore look forward to establishing what the law is and should be.

At the same time I must note that this judicial process will bring out a lot of the ugly issues that the Board probably would rather not discuss in the public fora, including the fact that Julia Earl helped promulgate the speech restriction in the first place.

And in the second place, why the push to silence the public in this, the "Live Free or Die" State?


Christopher King, J.D.


From: Tom Flygare

Kim: At your request, we have reviewed the conflicting legal opinions you have received from Attorney Steve Bennett and Attorney Barbara Loughman. Those opinions are available at


The Loughman opinion was based on the Vagalebre decision issued by the US District Court for New Hampshire by Judge DiClerico in 1998; Vagalebre was not mentioned in the Bennett opinion. After reviewing the cases cited by Attorney Bennett and other cases on this topic, we are of the opinion that Vagalebre is still the most relevant precedent for a New Hampshire school district faced with a dispute about a public comment provision in school board policy.

Several factors contribute to our view on this. First, neither the First Circuit Court of Appeals nor the US Supreme Court has issued a decision overruling the rationale of Vagalebre. Second, it is of no consequence that Vagalebre is “unpublished” or “unreported”; it remains the most direct statement on this issue by New Hampshire ’s Federal Bench. Third, while some of the cases from other states cited by Attorney Bennett raise questions about the rationale used by Judge DiClerico in his Vagalebre decision, it is not uncommon for judges in various jurisdictions to reach different legal conclusions. The facts in each of those cases also differ from the situation in Nashua to varying degrees.

In any event, none of those judges has the authority to overrule Judge DiClerico. Please let me know if you have any questions or comments. Thank you.

Tom Flygare
Flygare, Schwarz & Closson, PLLC
P.O. Box 439, 11 Court Street Exeter, NH 03833
Tel. 603-778-7300
Fax 603-778-7373
Email: tflygare@nhlaborlaw.com
Web: http://www.nhlaborlaw.com