1Galibois moves to alter judgment under Federal Rule of

Civil Procedure 59(e). Because judgment has not yet been entered

in this case, his motions are deemed to seek reconsideration

pursuant to Local Rule 7.2(e).

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Joseph F. Galibois

v. Civil No. 04-cv-444-JD

Opinion No. 2007 DNH 064

John Fisher

O R D E R

Joseph F. Galibois, who is proceeding pro se, moves for

reconsideration of part of the court’s order granting in part and

denying in part John Fisher’s motion for summary judgment.1

Specifically, Galibois contends that the court improperly

concluded that Fisher’s restriction on Galibois’s costume was

content-neutral and resolved disputed facts against him.

Galibois’s motions demonstrate a misunderstanding of the

applicable law and the matters that were resolved in the court’s

previous order. Because trial of this case is scheduled to begin

next week, the court is addressing the motions without the

benefit of Fisher’s response.

Case 1:04-cv-00444-JD Document 64 Filed 05/09/07 Page 1 of 5
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A. Content-Neutral

Galibois argues that the court improperly applied the

analysis required under Ward v. Rock Against Racism, 491 U.S. 781

(1989), in determining that Fisher’s restrictions on his

demonstration were content-neutral. As the court explained in

the previous order, the standard for deciding whether a

restriction is content-neutral or content-based is “whether the

government has adopted a regulation of speech because of

disagreement with the message it conveys.” Id. at 791. “The

government’s purpose is the controlling consideration.” Id.

In contrast, if the restriction merely limits the manner or mode

of expressive conduct, it is content-neutral. Gun Owners’ Action

League, Inc. v. Swift, 284 F.3d 198, 211 (1st Cir. 2002).

In Frye v. Kansas City, Mo. Police Dep’t, 375 F.3d 785 (8th

Cir. 2004), the court of appeals upheld the district court’s

conclusion that police officers’ restrictions “on the display of

large signs displaying photographs of mutilated fetuses” was not

based on the demonstrators’ anti-abortion message. Id. at 790.

The police “gave the demonstrators the option of staying by the

side of the road if they did not display the large graphic

photographs that had distracted motorists or the option of

displaying the photographs at a location further from the road.” 

Case 1:04-cv-00444-JD Document 64 Filed 05/09/07 Page 2 of 5
2Galibois confuses the manner of presenting his message with

the content of the message. 

3

Id. The court concluded that the police did not restrict the

demonstrators' use of their signs to interfere with their message

but instead "placed reasonable restrictions on the location of

the signs in order to protect public safety." Id. The court

also ruled that demonstrators do not have the right to use the

most effective means for presenting their message. Id. at 791-

92; see also Vlasak v. Sup. Ct. of Cal., 329 F.3d 683, 684 (9th

Cir. 2003) (holding that ordinance prohibiting wooden objects of

certain thicknesses from demonstrations was content-neutral when

demonstrator was arrested for carrying “bull hook” in animal

rights demonstration). 

In this case, Fisher’s restriction on Galibois’s costume was

not for the purpose of altering, limiting, or prohibiting

Galibois’s anti-Kerry message. Instead, the restriction was

aimed at the manner in which Galibois delivered his message, that

is, Fisher restricted that part of the costume which he deemed to

be threatening or likely to cause public alarm.2 Whether

Fisher’s restriction on the costume was reasonable, however,

meaning narrowly tailored to meet a significant governmental

interest while leaving ample alternative opportunities for

communication, is a matter for the jury to decide.

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B. Factual Issues

Galibois mistakenly assumes that the court found, in ruling

that Fisher’s restriction was content-neutral, that his

demonstration was “threatening behavior” and that Fisher’s

restriction was necessary to protect public order and the free

flow of traffic. To the contrary, those are factual issues that

must be resolved by the jury. In determining whether the

restriction was content-neutral, the court did not consider

whether the reasons given for the restriction were true,

necessary, or important. Instead, the court concluded that the

restriction did not focus on or impede Galibois’s message but

instead limited the manner in which he conveyed his message. 

At trial, the jury will decide whether Fisher’s restriction

was reasonable. In doing so, the jury will consider whether the

restriction was narrowly tailored to serve a significant

governmental interest and whether there were ample alternative

opportunities for Galibois to convey his message. As part of

that process, the jury will hear evidence about Galibois’s

demonstration and the circumstances that existed at that time and

decide whether Galibois’s behavior was sufficiently threatening

or whether he disrupted traffic to the extent that Fisher’s

restriction was necessary to preserve public order and was

narrowly tailored to serve that purpose.

Case 1:04-cv-00444-JD Document 64 Filed 05/09/07 Page 4 of 5
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Conclusion

For the foregoing reasons, the plaintiff’s motions for

reconsideration (documents nos. 61 and 63) are denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 9, 2007

cc: Brian J.S. Cullen, Esquire

Joseph F. Galibois, pro se

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