The Unconstitutional Gag:

By Jeffrey Thomas Clay

When prominent municipal law firms like Donahue, Tucker, & Ciandella (DTC) draft settlement agreements on behalf of public entities, they are bound not just by the rules of contract, but by the supreme law of the land: the United States Constitution and the New Hampshire Constitution. Yet, a review of the March 23, 2023, Mutual Settlement Agreement executed between Jeffrey T. Clay and the Town of Newmarket exposes a shocking disregard for foundational legal principles.

For a major firm handling municipal affairs, offering and enforcing a contract of this nature is a profound institutional failure. The agreement does not merely settle a dispute; it attempts to leverage $2,000 in taxpayer funds to permanently strip a citizen of their constitutional and statutory rights.

A rigorous analysis of the text reveals multiple egregious legal and constitutional errors engineered by municipal counsel that render these provisions patently illegal and unenforceable.

1. The Right-to-Know Ban: Contracting Away Statutory Rights

The Clause: “...the Petitioner... agrees that he shall submit no additional RSA 91-A requests ever again to the Respondents...”

The Legal Error: New Hampshire’s Right-to-Know Law (RSA 91-A) is an extension of Part I, Article 8 of the New Hampshire Constitution, which declares that the public’s right to access governmental proceedings and records is "essential to the provisions of freedom." A municipality cannot create a class of "disenfranchised" citizens who are permanently banned from requesting public records. Public records belong to the public, and access cannot be bargained away by a government entity looking to avoid transparency.

2. The Third-Party Binding Flaw: Stripping Rights from Non-Signatories

The Clause: “...nor shall the Petitioner have any family relatives or others submit RSA 91-A requests on his behalf ever again to the Respondents.”

The Legal Error: It is an elementary principle of contract law that an agreement cannot bind non-signatories or strip third parties of their independent rights. A law firm attempting to draft a provision that restricts the statutory rights of a citizen’s "family relatives or others" is a glaring error. The Town has absolutely no legal authority to deny an RSA 91-A request from a relative or an associate simply because of their relationship to a specific individual.

3. Absolute Prior Restraint and First Amendment Violations

The Clause: “The Petitioner also agrees that he shall not engage in writing in media or social media about the Respondents, its employees or its other public officials.”

The Legal Error: This is a textbook example of an unconstitutional prior restraint on speech, violating the First Amendment and Part I, Article 22 of the New Hampshire Constitution (Free Speech and Liberty of the Press). Public officials and government bodies cannot use taxpayer dollars to purchase a citizen's permanent silence or insulate themselves from public criticism. Blanket prohibitions on criticizing public officials are categorically unconstitutional in the United States.

4. The Extraterritorial Expansion of Silence

The Clause: “In addition, if any of the Respondents or their employees assume employment with other municipalities, Respondent agrees that he shall not submit RSA 91-A requests to those persons when employed elsewhere or to their new municipal employers.”

The Legal Error: This clause attempts to extend the authority of the Town of Newmarket across the entire state of New Hampshire. A settlement agreement with one specific town cannot legally restrict a citizen's right to interact with or request public records from entirely separate municipal corporations or public entities. It is an absurd overreach that completely ignores the distinct corporate boundaries of municipal governments.

5. The Government Non-Disparagement Illusion

The Clause: “The Parties agree not to criticize, denigrate, or disparage any of the other Parties in this action. The Parties recognize and agree that any disparagement of the other Party constitutes a material breach...”

The Legal Error: While non-disparagement clauses are common in private sector employment settlements, they are highly restricted—and routinely struck down—when applied to public entities. The government does not possess a right to be free from "disparagement" or criticism by the citizenry. Enforcing a gag order under the threat of a "material breach" violates the fundamental right to petition the government for a redress of grievances under the First Amendment and Part I, Article 32 of the New Hampshire Constitution.

Conclusion: A Malfunction of Municipal Stewardship

Any competent municipal attorney knows that a town cannot contract its way out of the Constitution or RSA 91-A. By presenting a citizen with an agreement that strips away state-wide transparency rights and mandates total media silence under financial penalty, the drafting attorneys at Donahue, Tucker, & Ciandella engineered a document built on coercion and legal fiction.

Instead of guiding the Town of Newmarket toward legitimate compliance and risk management, the inclusion of these terms demonstrates a willing attempt to abuse the settlement process to build an unconstitutional fortress around local public officials. Rulings or contracts that leverage power to suppress transparency do not protect municipalities—they compromise the very integrity of New Hampshire's legal system.