CONCORD, N.H. — State Representative David C. Love sponsored an ill-fated bill last year that would have required public libraries in New Hampshire to conduct background checks on all staff and volunteers. He said he wanted to protect children from drag queens.
Love, a Republican from Derry, testified about two drag performers in particular. He claimed one was seen “dancing with kids, rubbing butts, just really going way too far” during an event that was held at a private venue in Derry after opponents objected to holding the event at the local library. He claimed another performer was revealed to be a “convicted sex offender” after an event a few years earlier at a library in Nashua.
But he didn’t have his facts straight.
Local leaders, lawmakers, and others quickly panned Love’s testimony as demonstrably false. Derry Town Councilor Jim Morgan, a Republican who is gay, said Love had blatantly lied to muster up a reason to pass “a flawed bill,” as Manchester Ink Link reported at the time. And two drag performers filed a defamation lawsuit accusing Love of publicly smearing them.
Now, after representing himself in the litigation for well over a year, Love has a new legal team that’s asking a judge to dismiss the lawsuit in its entirety. His attorneys, Gretchen M. Wade and Michael J. Tierney, contend that he is entitled to absolute legislative immunity. That, they argue, means Love cannot be sued for things he said while speaking about legislative business.
Their argument is based on Part 1, Article 30 of the New Hampshire Constitution, which states: “The freedom of deliberation, speech, and debate, in either House of the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other Court or place whatsoever.”
New Hampshire’s legislative immunity clause is far from unique. Most state constitutions have such a provision, and the US Constitution’s Speech or Debate Clause has been applied to state and local legislators as well.
But the details about whether and how Love’s legislative immunity applies when he’s not testifying before a House committee are in dispute. The lawsuit alleges that he made defamatory comments in two places outside the committee hearing room in the days after his testimony. The first was in a phone interview with the Manchester Ink Link, a local online news outlet, and the second was during a Derry Town Council meeting.
During the interview, Love reportedly said a couple of his constituents had relayed concerns to him about the alleged butt-rubbing in Derry, and he said he recalled reading a newspaper article about the Nashua performer’s alleged sex offender status. (Love’s attorneys wrote in a recent court filing that he had, in fact, read an article in spring 2019 about a sex offender performing in drag at a library, but the incident was in Houston, Texas, not Nashua.)
During the town council meeting, Love allegedly likened drag story hour events to having a “stripper” or “pole dancer” offer instruction to children. “Leave the kids alone,” he said, according to the complaint. “Let them grow up normal.”
The plaintiffs, Michael McMahon of Danville and Robert Champion of Bow — neither of whom is listed as a registered sex offender in New Hampshire — said the public clearly understood that Love was referring to them when he falsely claimed they had engaged in sexual misconduct.
McMahon, who uses the stage name Clara Divine, had performed for a family-friendly storytime event at the Tupelo Music Hall in Derry on June 18, 2021, and Champion, who uses the stage name Monique Toosoon, had performed for a teen-oriented event at the Nashua Public Library on Jan. 12, 2019.
Their lawsuit, which seeks unspecified damages, alleges that Love’s comments in the days after the legislative hearing render him liable for their defamation claims. They say he spoke with hostility toward the LGBTQ community and abused his power based on his animus toward drag queen story hour events.
Love’s attorneys, however, argue that the absolute legislative immunity he enjoyed in the hearing room still applied when he spoke to the press and during the town council meeting. These forums are “the exact locations where” his “absolute immunity is at its zenith,” they wrote. It doesn’t matter whether Love was acting in good faith, they said.
“All of the allegedly defamatory statements relate to Representative Love’s legislative testimony on February 10, 2022,” they wrote. “This foundational legislative committee hearing statement is absolutely privileged, as is every explanation made afterwards about its occurrence.”
Love and his attorneys didn’t respond to the Globe’s interview requests. McMahon and Champion didn’t respond either. One of their attorneys, Timothy J. McLaughlin, declined an interview request.
This lawsuit is unfolding against a tense political backdrop as Republican lawmakers across much of the country have been advancing legislation to restrain the visibility of LGBTQ people, particularly those who are transgender or who otherwise defy binary gender stereotypes, in places and in media visible to children.
New Hampshire hasn’t been immune to the heated rhetoric. The conservative Christian advocacy group Cornerstone Action, which endorsed Love’s reelection in 2022, has fanned some of the flames. The group claimed on its website, for instance, that Champion’s 2019 performance at the Nashua Public Library was part of a trend bent on “grooming minors and normalizing sexual behavior.”
The potential policy implications reach well beyond a debate over which art forms are suitable for which audiences. Love sponsored a separate bill in 2023 that would prohibit “gender transition procedures” for minors and regulate pronoun usage in public schools, and he has initiated a process to sponsor a bill in 2024 about “prohibiting the mutilation or alteration of the sexual or reproductive system of a minor.”