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