N.H. court overturns verdict on advertising

By Lynne Tuohy
Associated Press / November 11, 2010

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CONCORD, N.H. — The New Hampshire Supreme Court reversed a $6.7 million verdict against a wireless communications provider yesterday, saying its advertising campaign against a competitor was protected as free speech.

Fifth Estate Tower waged the postcard and advertising campaign to defeat a bid by Green Mountain Realty Corp. to install communications towers in Wolfboro. Wolfboro voters defeated the proposal in a special town meeting in 2005.

Green Mountain sued, eventually winning the jury verdict against Fifth Estate.

In its unanimous ruling, the Supreme Court ruled that Fifth Estate’s campaign was political speech and exempt from the state Consumer Protection Act. It rejected Green Mountain’s argument that the campaign contained false claims and therefore violated the act.

The justices noted that even if Fifth Estate’s campaign involved unfair or deceptive practices, the act does not apply because Fifth Estate’s conduct occurred in a political setting. Its campaign against Green Mountain Realty, the court wrote, used public media “for the purpose of influencing political decisions of the general electorate.’’

Green Mountain lawyer Robert Ciandella said the company had no comment.

At the lower level, the court had instructed jurors that Fifth Tower’s claims were commercial in nature and not protected by the First Amendment. Each of the 3,337 postcards mailed by Fifth Tower were counted as individual violations in arriving at the award.

The Supreme Court appeal drew numerous friend-of-the-court briefs by free speech advocates.

Attorney Stephen Hoersting, representing the Virginia-based Center for Competitive Politics, said that if the lower-court ruling had prevailed, it would have had a “significant, chilling effect on political speech.’’

“I think everyone understands if you allow the Consumer Protection Act to bleed into this area, it would have a sweeping effect all over the country,’’ Hoersting said. “This is about political speech, and luckily the court saw that the constitution, both federal and New Hampshire’s, doesn’t permit CPA laws to weigh in.’’