Argument: New Hampshire has no legal authority to enforce victimless crime laws

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It’s time the ghosts of Ademo Freeman and Jason Talley take on the State of New Hampshire!

Argument: The Equal Protection Clause Prohibits New Hampshire from Enforcing Victimless Crime Laws Due to Systemic Unequal Treatment of Harmful Acts by Government Officials

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution mandates that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This requires that similarly situated individuals be treated alike under the law, and that any distinctions in treatment must, at minimum, have a rational basis tied to a legitimate government interest. When a state enforces criminal laws selectively—punishing harmless conduct by ordinary citizens while allowing government officials to commit overtly harmful acts with impunity—it creates an arbitrary classification that fails this test.

In light of the documented misconduct in State v. Jason Talley in Cheshire County, New Hampshire, where a judge was caught on camera lying to justify the false arrest of journalist Ademo Freeman, and the subsequent judicial rules restricting courtroom recordings to shield such abuses, the state’s continued enforcement of victimless crime laws violates equal protection. This is because the government has institutionalized a system where officials “hurt people and get away with it,” rendering the prosecution of non-harmful, victimless offenses irrational and discriminatory.

1. Factual Foundation: Documented Government Misconduct and Impunity in State v. Jason Talley

In June 2011, during proceedings related to State v. Jason Talley in Cheshire County District Court, Judge Edward Burke ordered the arrest of Ademo Freeman (real name Adam Mueller), a citizen journalist associated with the activist group Cop Block. Freeman was merely asking questions about public policy and the enforcement of a courtroom hat rule, which constituted protected speech under the First Amendment.

Video evidence captured Judge Burke fabricating a justification for the arrest, claiming Freeman was disruptive when he was not—effectively lying on camera to orchestrate a false imprisonment.

This act caused direct harm to Freeman, including wrongful detention and violation of his civil liberties, yet Judge Burke faced no criminal charges, shielded by absolute judicial immunity.

This incident exemplifies how government officials in New Hampshire can engage in harmful conduct—such as abuse of power leading to false arrest, which inflicts tangible injury on individuals’ freedom, reputation, and well-being—without legal repercussions. False arrest is not a “victimless” act; it directly harms the targeted person. Yet, the state chose not to pursue accountability, highlighting a pattern where officials operate above the law.

2. The Judicial Branch’s Response: Rules Restricting Constitutional Rights to Prevent Accountability

In response to this exposure, the New Hampshire Judicial Branch enacted or reinforced rules that restrict audio and video recording in courts, effectively limiting the public’s ability to document and hold officials accountable for misconduct.

For instance, Supreme Court Rule 19, Superior Court Rule 204, and related guidelines require advance notice and judicial approval for any photographing, recording, or broadcasting in courtrooms, with broad prohibitions on electronic devices to prevent unauthorized captures.

These rules, which were updated or emphasized post-2011 (including expansions to cover virtual hearings like Zoom in 2021), directly curtail First Amendment rights to access and record public proceedings, as recognized in cases like Glik v. Cunniffe (1st Cir. 2011), which affirmed the right to record public officials in public spaces.

The motivation appears tied to incidents like the Freeman arrest: by restricting recordings “because a judge was caught lying on camera,” the state has prioritized protecting officials from scrutiny over ensuring transparency. This not only perpetuates impunity for harmful acts by government actors but also institutionalizes inequality, as ordinary citizens lack similar protections against exposure or prosecution for their actions.

3. Equal Protection Violation: Arbitrary Enforcement Against Victimless Crimes While Ignoring Official Harm

Victimless crimes—such as possession of small amounts of controlled substances (e.g., cannabis, though partially decriminalized), gambling, or consensual adult activities like prostitution—by definition involve no direct harm to others.

New Hampshire continues to enforce such laws, subjecting citizens to arrests, fines, and incarceration for conduct that injures no one.

In contrast, government officials like Judge Burke can commit acts that do hurt people (e.g., false arrest causing physical restraint, emotional distress, and loss of liberty) and face no equivalent enforcement.This creates two unequal classes:

• Class 1: Government Officials – Protected by immunities (judicial, qualified, or sovereign) and restrictive recording rules, allowing them to harm individuals without criminal liability.

• Class 2: Ordinary Citizens – Subject to full enforcement of the criminal code, even for non-harmful, victimless offenses.

Under equal protection jurisprudence, such as in Village of Willowbrook v. Olech (2000), even classifications not based on suspect traits (e.g., race) must have a rational basis.

Here, there is none: the state’s interest in public order or morality for victimless crimes is undermined by its tolerance of harmful official misconduct. Why punish a person for possessing marijuana (harming no one) while allowing a judge to falsely imprison someone (harming someone) without consequence? This hypocrisy renders enforcement arbitrary, as the state selectively applies “harm prevention” only to citizens, not itself.

Furthermore, selective prosecution claims, as in United States v. Armstrong (1996), require showing discriminatory effect and intent. The Freeman incident and recording restrictions demonstrate both: a pattern of shielding officials (effect) driven by a desire to avoid accountability (intent, inferred from post-incident rules). Extending this, the entire category of victimless crime enforcement is selectively burdensome on citizens, violating equal protection.

4. Remedy: Cease Enforcement of Victimless Crime Laws to Restore Equality

To comply with the Equal Protection Clause, New Hampshire must halt enforcement of victimless crime laws until it equalizes accountability.

This could involve repealing immunities for willful misconduct, lifting recording restrictions, or decriminalizing victimless acts altogether.

Continuing enforcement perpetuates a “two-tiered” justice system, where the government demands obedience to harmless laws while exempting itself from harmful ones—a clear constitutional infirmity.

In summary, the Talley/Freeman scandal and ensuing restrictions expose New Hampshire’s unequal legal landscape. Equal protection demands consistency: if officials can hurt people and “get away with it,” the state forfeits its moral and legal authority to prosecute victimless offenses. This argument, grounded in constitutional principles, calls for systemic reform to ensure true equality under the law.

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Expansion: Compelled Acts of Deference in Courtrooms Exacerbate the Unequal Protection Violation

Building on the core equal protection argument—that New Hampshire’s tolerance of harmful official misconduct while prosecuting harmless victimless crimes creates an irrational, discriminatory classification—this addition highlights how courtroom protocols mandating physical acts of respect (such as standing for the judge or removing hats) compound the injustice.

These rules, enforced coercively as seen in the events surrounding State v. Jason Talley and the antecedent Ademo Freeman incident, represent state-compelled deference to authority figures who themselves evade accountability. This not only chills free expression but also institutionalizes a power imbalance, stripping the state of legitimacy to enforce victimless laws against citizens who lack similar protections.

Factual Basis: Enforced Deference and Its Ties to Misconduct in State v. Jason Talley

The Talley saga began with Ademo Freeman’s 2011 encounter in Keene District Court, where Judge Edward Burke enforced a “hat rule” prohibiting headwear in the courtroom as a sign of respect.

Freeman, a journalist with Cop Block, questioned Burke about contempt charges for such violations, leading Burke to fabricate a threat and order Freeman’s arrest for “improper influence”—despite video evidence showing no disruption or threat.

This false claim resulted in Freeman’s wrongful detention, yet Burke faced no charges, protected by judicial immunity and a protracted review that ultimately declined prosecution.

The fallout extended to broader restrictions: In response to the video exposing Burke’s lie, the New Hampshire Judicial Branch reinforced bans on unauthorized recording and electronic devices in courtrooms (e.g., Supreme Court Rule 19), limiting public oversight.

Jason Talley was later charged in 2012 for merely possessing a camera in a court common area, violating these post-Freeman rules designed to shield officials from scrutiny.

Talley’s case was dismissed after arguments exposed the judiciary’s “special levels of protection from accountability,” but it underscored how questioning or defying decorum rules triggers punishment.

While the hat rule was central, it exemplifies a pattern of compelled respect, including the standard “all rise” mandate when judges enter—requiring physical standing regardless of personal beliefs or physical ability. Failure to comply can lead to contempt citations, fines, or arrest, as in similar NH cases where individuals were sanctioned for not standing due to ideological objections (e.g., libertarian activists challenging authority symbols).

How Compelled Deference Furthers the Injustice and Equal Protection Breach

These protocols amount to state-coerced speech and conduct under the First Amendment, akin to compelled salutes or pledges (West Virginia State Board of Education v. Barnette, 1943), forcing citizens to affirm respect for an institution rife with unpunished misconduct. In the Talley/Freeman context:

Two-Tiered Coercion

Citizens must physically submit (stand, remove hats) to “respect the court,” facing immediate sanctions for refusal, while judges like Burke can lie, cause harm (e.g., false arrests inflicting detention and distress), and “get away with it” via immunity.

This disparity lacks rational basis: If the state’s interest is courtroom decorum and authority, it is undermined when authority figures abuse power without consequence, eroding public trust (Olech, 2000).

Chilling Effect on Rights

Enforcing such rules post-misconduct (e.g., recording bans after Burke’s exposed lie) prevents documentation of further abuses, perpetuating impunity. Citizens prosecuted for victimless crimes enter this unequal arena, where they must perform deference to a biased system—amplifying selective enforcement claims under Armstrong (1996). For instance, a defendant in a minor drug possession case must “rise” for a judge potentially shielding colleagues’ crimes, rendering the process inherently discriminatory.

NH Constitutional Conflict

Part 1, Article 10 (right to reform government under oppression) is violated when courts demand ritualistic respect amid systemic hypocrisy. Enforcing victimless laws in such venues equates to using coercive rituals to legitimize arbitrary power, failing due process under Article 15.

Remedy Integration: Broader Non-Enforcement Imperative

To rectify this, halting victimless crime enforcement is essential until reforms address compelled deference—e.g., making standing/hat rules optional, repealing recording bans, or stripping immunities for willful lies.

Without this, the state’s “respect” demands ring hollow, further invalidating its authority over harmless acts.This addition reinforces the original thesis: New Hampshire’s justice system, marred by protected misconduct and coercive rituals, cannot equitably enforce victimless laws without violating equal protection.