Judge rejects argument NH ‘revenge porn’ law violates First Amendment rights

Valley News
Published: 12/11/2019 4:43:35 PM

A Sullivan Superior Court judge has rejected a Claremont man’s argument that New Hampshire’s law against “revenge porn” violates his First Amendment rights.

Chad Boardman, 43, is accused of violating the law in January by sending a sexually explicit video and topless photo of a former girlfriend to her housemate without her consent.

But his defense attorney, Tony Hutchins, asserted in a July motion that the law is unconstitutional.

In the motion, Hutchins argued that the statute “restricts speech and thus implicates the First Amendment.” He said that the image and video Boardman is accused of sending constitute speech that should be protected under the Constitution. The law in question went into effect in 2016 and prohibits “nonconsensual dissemination of private sexual images,” in specific cases, including when the images are used to harass the person they depict.

“(The) statute imposes a content-based restriction on speech,” Hutchins asserted.

Deputy Sullivan County Attorney Justin Hersh disagreed, arguing that the First Amendment does not extend to all speech. In an August objection to Hutchins’ motion, Hersh wrote that “unprotected speech” includes defamation, obscenity and child pornography.

“The content defined in RSA 644:9-a, should be deemed categorically excluded from the protections of the First Amendment as obscenity,” Hersch wrote, referring to the 2016 law.

Judge Brian Tucker handed down a ruling in the case last month, denying Hutchin’s motion to dismiss and saying that the statute does not violate Boardman’s First Amendment rights.

In his Nov. 27 decision, Tucker sided with prosecutors and said that the statute does not “punish the simple act of communicating statements,” but that it does punish conduct that’s meant to “harm another person.”

“(The statute) is content-neutral because it does not restrict the content of the speech, but rather the attempt to harass, intimidate, threaten, or coerce the depicted person,” Tucker wrote in his ruling, which referenced similar rulings in other states.

The decision comes months after Boardman was indicted on two felony counts of nonconsensual dissemination of private sexual images for sending a picture and a video of a former girlfriend to her housemate without the woman’s consent, according to an affidavit written by Claremont police Officer Michael Puksta.

The former girlfriend told police that the images were meant to be private and she believed Boardman accessed them from her phone or her “Google Cloud.”

When he was arrested, Boardman told police that he sent the images because he didn’t like his former girlfriend and because he wanted the housemate to “kick her out,” according to prosecutors. Boardman has since been released on personal recognizance bail and currently works at an auto parts shop.

Calls to Boardman and Hutchins were not returned Tuesday. Boardman’s trial is scheduled for next year, according to Sullivan County prosecutors.


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