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Jonathan Doyle v. Commissioner

January 13, 2012

JONATHAN DOYLE
v.
COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT & A.



The opinion of the court was delivered by: Duggan, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: November 10, 2011

The plaintiff, Jonathan Doyle, appeals an order of the Superior Court (Smukler, J.) granting summary judgment to the defendants, the Commissioner of the New Hampshire Department of Resources and Economic Development and the Monadnock State Park Manager (collectively, DRED), and denying Doyle's motion for summary judgment. We reverse and remand.

The record supports the following facts. Mount Monadnock is a 3,165- foot mountain within Monadnock State Park, which is owned and managed by DRED. With 100-mile views to points in all six New England states, Mount Monadnock is said to be the second most climbed mountain in the world. Aside from hiking the mountain, visitors to Monadnock State Park may camp, picnic, Nordic ski and snowshoe. Mount Monadnock has been designated a National Natural Landmark.

On September 6, 2009, Doyle decided to film himself dressed as "Bigfoot" on Mount Monadnock. Bigfoot, also known as Sasquatch, is "a large, hairy humanlike creature believed by some persons to exist in the northwestern United States and western Canada." 10 The New Encyclopedia Britannica 464 (15th ed. 2010). "The British explorer David Thompson is sometimes credited with the first discovery (in 1811) of a set of Sasquatch footprints . . . ." Id.

Since then, "[v]isual sightings and even alleged photographs and filmings (notably by Roger Patterson at Bluff Creek, Calif., in 1967) have also contributed to the legend." Id. However, "most scientists do not recognize the creature's existence." Id.

To execute his planned filming of Bigfoot, Doyle purchased a costume resembling an ape and then climbed the mountain with his girlfriend. At the top, he put on the Bigfoot costume and filmed conversations he had with other hikers. After about twenty minutes, he removed the costume and descended the mountain. On his way down, he encountered two park staff members, and persuaded them to write a note saying there had been a "Bigfoot sighting" on the mountain. The staff members later said they were just playing along with what they thought was a college project. After leaving the park, Doyle went to both the local police station and State Police in Keene to tell them that there had been a Bigfoot sighting on Mount Monadnock.

Pleased that his Bigfoot hoax resulted in hikers "interacting, laughing, and coming together as a community," Doyle decided to stage another Bigfoot event on the mountain. To raise awareness of his next appearance, he had a friend interview him about the first event and write a press release, which Doyle gave to the Keene Sentinel. The newspaper printed a story that said Doyle would again climb the mountain dressed as Bigfoot. Doyle also promoted this upcoming appearance on his website.

On September 17, 2009, the Monadnock State Park Manager, Patrick Hummel, sent an email to his supervisor, Brian Warburton, informing him of Doyle's activities. Hummel said that Doyle "never ran anything by [him]." He expressed annoyance over the fact that newspapers had called him to ask whether the Bigfoot story was legitimate. He also told Warburton that the Bigfoot party would soon return, and because he believed they had "stepped over the line" he would intercept them prior to their ascent.

On September 19, 2009, Doyle and five others returned to Mount Monadnock to stage another Bigfoot filming. They hiked up to the Halfway House, a trail junction, and prepared to perform. Doyle and two of his friends remained in plain clothes, while the others dressed up as Bigfoot, Yoda and a pirate. Doyle filmed a few scenes and interviewed passing hikers. Additionally, several people stopped to watch them filming.

Shortly thereafter, Hummel approached Doyle and asked him whether he had a special-use permit. Doyle said he did not, and Hummel told him that he had to leave the mountain. Doyle and his friends complied.

Under New Hampshire Administrative Rule, Res 7306.01(a), a person must obtain a special-use permit to use DRED properties for "[h]olding organized or special events which go beyond routine recreational activities." To obtain a permit, the applicant must apply for the permit at least thirty days prior to the event, pay a $100 fee and obtain a $2,000,000 insurance policy that covers the State of New Hampshire. N.H. Admin. Rules, Res 7306.01 to .04. Once these requirements are met, DRED "shall approve [the] application." N.H. Admin. Rules, Res 7306.04(a).

Doyle subsequently brought a declaratory judgment action against DRED, arguing that Res 7306.01(a) violates the right to free speech contained in both Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. Doyle also sought a permanent injunction, nominal damages, costs and fees. The trial court granted summary judgment in favor of DRED, ruling that Doyle failed to show that Res 7306.01(a) "is unconstitutional either facially or as applied." On appeal, Doyle argues the trial court erred because Res 7306.01(a) is void for vagueness, overbroad on its face and not narrowly tailored, and also overbroad as applied to Doyle's small-scale project.

I. Analysis

Part I, Article 22 of our State Constitution provides: "Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved." N.H. CONST. pt. I, art. 22. Similarly, the First Amendment to the United States Constitution prevents the passage of laws "abridging the freedom of speech." U.S. CONST. amend. I. It applies to the states through the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin, 303 U.S. 444, 450 (1938).

We first address Doyle's claims under our State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only. Id. at 232-33. We review the constitutionality of state regulations de novo. See N.H. ...


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