PORTSMOUTH — Attorney Robert Sullivan has recommended the City Council consider implementing a series of regulations for the public forum area at Prescott Park.
The City Council asked Sullivan to report back to them with the proposed regulations after receiving a number of resident complaints about supporters of former President Donald Trump, who have been regularly gathering in the city-owned park.
“In a sentence, the general purpose of such regulations would be to balance public freedom of speech in Prescott Park with the more pastoral uses of the park envisioned by many, such as contemplation of nature, enjoyment of the river view, family picnics, and the like,” Sullivan wrote in a memo to the City Council.
Sullivan said at times the presence of the Trump supporters has led to “bitter verbal exchanges” between the “individuals who are expressing themselves in the park in support of Donald Trump and more casual park visitors.”
Sullivan stated too that “it is apparent that some of the past problems which have occurred at the public forum area in Prescott Park have been caused by the lack of public knowledge as to the delineation of the designated public forum and the rules which apply within it.”
“For this reason, it is recommended that appropriate signage be erected in the park to clearly describe the public forum area and list the time, place and manner regulations adopted by the City Council for its use,” Sullivan said. “It is also clear that lack of city enforcement, particularly on weekends, has led directly to unintended expansion of the public forum area and conflict between public expressive conduct and the more pastoral uses of the park described above.”
“Accordingly, it is recommended that the council request that the city manager explore methods by which the public forum area may be monitored and the regulations enforced, particularly on weekends,” Sullivan added.
The City Council is expected to discuss the proposed regulations at its Monday night meeting.
Prescott Park’s public forum area
The designated public forum area in Prescott Park — which is located in the city’s South End on the banks of the Piscataqua River — has been a traditional location where residents have been encouraged to speak their minds on issues of their choosing.
The Trump supporters in the park during this past summer and the summer of 2021 have typically sat in a group of chairs, often holding pro-Trump or American flags — along with signs supporting the former president — when they gather, often during the afternoon.
The public forum area “is an area which has acquired a constitutionally protected status which allows a broad latitude of expressive conduct protected by the First Amendment of the United States Constitution,” Sullivan said previously. “The public forum is designed to allow freedom of speech in the Park but to keep it separate from the more quiet, pastoral uses which might be expected in the park.”
But he acknowledged “there is confusion concerning what area has been actually designated as the public forum in the park.”
To help alleviate that confusion, Sullivan included an aerial photo in the memo showing where he believed the public forum area is.
The photograph shows the public forum area as the sidewalk in front of the fence adjacent to the Piscataqua River and an open area to the right of it as visitors look at the water.
The public forum is located adjacent to a parking area.
That depiction of the public forum, Sullivan said, “strikes a balance amongst all of the options and therefore should be considered by the City Council for designation as the public forum area.”
Free speech is most important
Sullivan stressed the content of the speech in the public forum can’t be regulated.
“Simply put, it is considered antithetical to the First Amendment of the United States Constitution that government make the determination as to which speech should be allowed or which speech should be disallowed based upon the content of that speech,” he said.
He also recommended that there should not be any time regulations put on the public forum area.
But Sullivan also shared a series of regulations adopted by the Trustees of the Trust Fund – who used to regulate operations in the park – in 2013 for the public forum area.
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The City Council now sets park regulations, Sullivan said.
“It seems that the work of the Trustees in 2013 provided a thoughtful balance of the First Amendment considerations and other type of uses which might exist within the park,” Sullivan said. “Accordingly, it seems that consideration by the council of the 2013 public forum regulations … would be an appropriate starting point for adoption of public forum manner regulations by the City Council at the present time.”
Those regulations include banning the distribution of fliers “or other items which might be prone to litter,” and limiting the use of fixed signs to one which can be no “larger than 4-feet by 8-feet.”
“All other signs must be handheld,” according to the regulations.
The Trustees also banned the use of “electronic amplification” for the period from 90 minutes before the start of a performance at the Prescott Park Arts Festival until the completion of the performance.”
The regulations also required groups that used the public forum to provide police details “in the event that any particular activity creates an inordinate risk to the public safety.”
“The Trustees also adopted the policy that ‘[t]he remaining areas of Prescott Park and Four Tree Island are designated as being not a public forum, and therefore those areas are not available to be used for expressive purposes,’” Sullivan said.
In addition, because of an agreement with the arts festival, “the stage in the park is prohibited for use as a public forum,” Sullivan pointed out.
Sullivan spent an afternoon in the park when the Trump supporters were there and said “it appeared to me what most aggravated people is the mere fact they were supporting Donald Trump.”
Mark Brenner is one of the leaders of a group of Trump supporters who appear regularly in the park.
He said previously the Trump supporters intend to keep supporting the former president in Prescott Park “until Trump is back in office.”
Audit Committee issue on Portsmouth council agenda, too
In addition to the public forum issue, the council is scheduled to discuss the makeup of the city’s Audit Committee during its Monday night meeting.
The city’s Governance Committee had recommended eliminating the three volunteer citizen members of the committee, all of which have a background in finances, according to documents filed with the city.
But after a number of residents spoke out against the proposed change, the council took no action on that specific part of an ordinance change at its August meeting.
That gave Sullivan time to draft a proposed new ordinance which recommends that the Audit Committee is made up of three city councilors and three residents.
All six members will be voting members, according to the proposal drafted by Sullivan, he said in a memo to the council.
Monday’s meeting is slated to begin at 7 p.m. in City Council Chambers in City Hall.