Nicholas v. NH Department of Fish and Game, Executive Director et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason B. Nicholas
v. Civil No. 23-cv-196-LM
N.H. Department of Fish and Game,
Executive Director et al.
O R D E R
Before the court is Magistrate Judge Andrea K. Johnstone’s Report and
Recommendation in this case, dated December 28, 2023 (doc. no. 24). Plaintiff Jason
B. Nicholas brings eight claims against defendants. In Count 1, he brings a First
Amendment claim based on three theories: freedom of speech, freedom of
association, and freedom of “occupational choice.” Counts 2 through 7 allege
violations of Nicholas’s Fourteenth Amendment substantive and procedural due
process rights. In Count 8, Nicholas alleges a civil conspiracy in violation of 42
U.S.C. § 1985. In her Report and Recommendation, Judge Johnstone granted
defendants’ motion to dismiss (doc. no. 19) as to Counts 2 through 7, and two of the
three First Amendment theories (freedom of association and freedom of
occupational choice) in Count 1. Judge Johnstone denied the motion as to Nicholas’s
First Amendment claim based on freedom of speech. After due consideration of the
objection filed, I approve the Report and Recommendation with one exception: I
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deny the motion to dismiss Nicholas's First Amendment claim based on freedom of
association.
In his complaint, Nicholas alleges that the New Hampshire regulations bar
him from working as a licensed fishing guide because he is a felon, and do not allow
him to challenge the denial of his license application. Doc. no. 18 ¶¶ 38-41. Nicholas
further alleges that his work as a guide would allow him to “speak, share and
teach,” encouraging his clients to be “fully[]realized and happy human being[s].” Id.
¶ 18. According to Nicholas, “going off-grid, and off-line, can be a radical, even
revolutionary act and protest against the Digital Age status quo.” Id.
The First Amendment protects the freedom of association in two
circumstances: (1) in “choices to enter into and maintain certain intimate human
relationships” and (2) in associations “for the purpose of engaging in those activities
protected by the First Amendment.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18
(1984) (internal quotation marks omitted); URI Student Senate v. Town of
Narragansett, 631 F.3d 1, 13 (1st Cir. 2011). This case implicates the latter. “[T]he
Court has recognized a right to associate for the purpose of engaging in those
activities protected by the First Amendment—speech, assembly, petition for the
redress of grievances, and the exercise of religion.” Roberts, 468 U.S. at 618. “It
seems indisputable that an association that seeks to transmit . . . a system of values
engages in expressive activities.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 650
(2000).
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At this early stage in the litigation, Nicholas has sufficiently alleged an
infringement on his freedom of association. Construed broadly, Nicholas’s intended
work as a fishing guide, and the speech he wishes to engage in as a guide, falls
within the type of expressive conduct the Constitution protects. See id.; Roberts, 486
U.S. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills
or participation in community service might become expressive when the activity is
intended to develop good morals, reference, patriotism, and a desire for self-
improvement.”); see also Nicholas v. Seggos, No. 8:23-cv-463, 2023 WL 6121164, at
*5 (N.D.N.Y. Sept. 19, 2023) (allowing Nicholas’s freedom of association challenge
against the New York guiding law to proceed). Therefore, as to Nicholas’s freedom
of association claim, the court denies defendants’ motion to dismiss. Otherwise, the
court adopts the Report and Recommendation. There are now two First Amendment
claims remaining in the case: one based on freedom of speech and another based on
freedom of association.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 28, 2024
cc: Jason B. Nicholas, pro se
Counsel of Record
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