13-05-2025
NH judge affirms convictions of two men charged with recording in federal court
A federal judge has affirmed the convictions of two men charged with failure to comply with federal law enforcement orders for recording inside the U.S. District Court in Concord in 2023.
Frank Staples, a leader of Absolute Defiance — the group involved in protests outside Gov. Chris Sununu's Newfields home which resulted in several arrests in 2020 — and former state representative Jason Gerhard, a supporter of Plainfield tax protestor Ed Brown and his wife, Elaine, were each sentenced to pay a fine of $100 with a $30 assessment fee on April 10, 2024, for failure to comply with federal law enforcement orders to stop recording.
According to court documents, on Friday, Sept. 9, 2023, Staples and Gerhard came into the lobby of the Warren B. Rudman U.S. Courthouse with video recording equipment and proceeded to record inside the courthouse.
Federal police officer Michael Plante told them they could not video record inside the courthouse because doing so would violate court rules. Staples and Gerhard asserted their right to record inside the courthouse and said they would return on Monday, Sept. 12, for a hearing in a criminal case involving Ian Freeman.
On Sept. 12, 2023, Staples and Gerhard again entered the courthouse with video recording equipment and recorded in the lobby area. Plante asked them to stop recording. Staples and Gerhard refused to stop and were arrested for the petty offense of failing to comply with the lawful order of a federal police officer.
A federal judge denied their motions to dismiss the charges, found each of them guilty, and sentenced each of them to pay a fine of $100 with a $30 assessment fee.
Both men appealed, arguing their First and Second Amendment rights were violated by restricting their efforts to make video recordings in a public space.
They argued the government has been selective in enforcing restrictions on video recording in the courthouse in violation of their Fourteenth Amendment rights, and claimed their due process rights were violated because the judge did not issue a written order giving reasons for their convictions. They also claimed confiscation of Staples's telephone at the end of his trial violated due process and the Fourth Amendment.
The men contend that preventing them from recording in the courthouse lobby deprived them of their First Amendment right to record public officials and proceedings in a public forum.
In affirming the men's convictions, Judge Steven McAuliffe wrote the interior of a courthouse is not a public forum.
Judge Talesha Saint-Marc allowed Staples to use his phone during his trial for the purpose of presenting evidence but prohibited him from recording the proceedings. Staples complied with that restriction to a point. When Saint-Marc began to deliver the verdict and the reasons for the verdict, Staples began to record the proceedings. The judge ordered him to stop recording, which he refused to do.
'He repeatedly swore at the judge and despite her direction to compose himself, he was unable to do so,' court documents state. 'The phone was then taken from him.'
Staples's phone incident did not affect Gerhard's trial, which had already ended.
'The phone incident occurred at the end of Staples's trial, and he has not shown or even argued that removal of his phone caused any prejudice to his ability to defend himself,' McAuliffe writes. 'To the extent he believes his rights were violated by the manner in which the phone was removed or the time before it was returned, those are not issues for appeal. Staples has not shown any due process violation caused by the removal of his phone that would be grounds for overturning his conviction.'
