IN THE UNITED STATES COURT OF APPEALS FIRST CIRCUIT BOSTON MASSACHUSETTS CHRISTOPHER KING, J.D. a/k/a KINGCAST.

NET, Plaintiff-Appellant, v. FRIENDS OF KELLY AYOTTE, et al., Defendants-Appellees. ) ) ) ) ORAL ARGUMENT REQUESTED CASE NO.12-1891 LOWER CASE NO. 2010-CV-501

PLAINTIFFS MEMORANDUM IN SUPPORT FOR LEAVE TO CONDUCT DISCOVERY TARGETED TO ELUCIDATE CRUCIAL ISSUES IGNORED BY THE LOWER COURT Now Comes Plaintiff-Appellant per FRCP 27(b) to note, inter alia, that the presence of uniformed Nashua Police personnel who were likely paid by the public, is a strong indicia that the events held in Nashua, New Hampshire are more public in nature than private in nature when it comes to the rights, responsibilities and privileges of the Fourth Estate. Further in-depth analysis of the salient issues, demonstrating why discovery is warranted, follows throughout this Memorandum. This case is at the core of a bourgeoning issue in America: The question of what role the alternative press is to have going forward, particularly those of us with realWorld experience and diligence. Having chaired a New England News and Press Association panel on this very issue, Plaintiff-Appellant asserts that he, and others like him, are the original pamphleteers in the modern era. The American and World public shall not be unreasonably denied any of our input when it comes to attending and reporting on publicly-advertised political events held on properties subject to substantial licensing and permitting -- particularly in the presence of area police working on taxpayer-subsidized salaries. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Oral argument on this matter is hereby requested. Respectfully submitted, /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D.

617.543.8085m

INTRODUCTION Now Comes Plaintiff-Appellant, having tendered full funds to prosecute his Appeal before this Court, to note that some measure of discovery is fully warranted in this matter, for the reasons stated herein. The Court must be aware that the issues of race and First Amendment violations (i.e. unlawful chilling) co-exist but are yet distinct and separate and a finding for either one is not a prerequisite to the other1 At the outset it is relevant to note that Appellant has never received the due consideration or respect from the Lower Court to which he was entitled: Magistrate McCafferty was forced to recuse herself after Plaintiff-Appellant discovered that she worked at McLane, Graf -- the same law firm as Defendant Ayotte and under direct supervision of Plaintiffs opposing counsel Jennifer Parent and Jack Middleton. She issued a Memorandum negative in every material aspect and yet this memorandum was never set aside even though the conflict clearly existed prior to the Court hearing. Every lawyer and judge in the World knows that Her Honor should have mentioned the relationship: It is Judicial Ethics 101. Further Jennifer Parent as NH Bar President and Senior Litigation counsel should have mentioned the relationship. And when confronted with the matter Judge Paul Barbadoro should have done more than just insouciantly state The Motion for Recusal is completely without merit, as he did.2 This Appeal comes after the Defendants issued public invitations and specific RSVP invitations to the press to publicly-advertised events that were accepted by Plaintiff-Appellant, only to alternately allow him in and kick him out, using a variety of purported nondiscriminatory rationales.3 The primary events included:

A money order in the amount of $455 was dispatched via overnight U.S. Mail on 16 October, 2012. 2 Her Honor only recused herself after vigorous video campaigns exposed the relationship. See http://www.youtube.com/watch?v=2vT7_uhnElQ Judge McCafferty Backdoor Recusal Taints NH Bar Ass'n & Courts in Free Press Racial case. Plaintiff told the Court We both graduated from Case Western Reserve School of Law and they dont graduate any dummies. 3 Plaintiff-Appellant is quite certain that this Court is aware of the general McDonnell-Douglas framework that provides that a Jury is entitled to hear the case on the merits if there are a number of purported, legitimate nondiscriminatory rationales that do not jibe. Plaintiff did expose some of these, but of course by truncating discovery the Court put Plaintiff in an impossible position in order to make this case go away. But this case is not going away, this case is going to SCOTUS and the American and World public are going to know exactly what the issues are that the lower court buried.

1.

A Manchester, NH Kelly Ayotte Facebook rally, advertised as open to the public. Plaintiff-Appellant appeared as the only black face in the crowd and was called a bigot and Ayotte Veterans Chair and former U.S. Marshal Stephen Monier called the police on Plaintiff as he stood on the sidewalk with his money in hand.

2.

A Nashua, NH publicly-advertised event The Joe Arpaio Steak-Out held at the Crowne Plaza, a locus consonant with political activity throughout the years.

3.

A Nashua, NH RSVP event at the VFW hall, where this country celebrates men and women who fight to preserve Americas freedoms. The Nashua Telegraphs Patrick Meighan wrote a story about the fact that PlaintiffAppellant had indeed RSVPd and wondering what would happen. Senator John McCain the same Senator who had recently expelled a sole black reporter without explanation at one of his rallies was sharing the floor with Defendant Ayotte that day. Defendant Ayotte ended up ignoring the very public RSVP given by Plaintiff-Appellant. http://www.nashuatelegraph.com/news/968730-196/senators-pastdispute-with-former-nashua-blogger.html Curiously, the reporter noted this very same history as being a likely influence on the case at bar.

4.

Note that Appellant has clearance to photograph the President of the United States, who appears in the background two years ago:

The Parties are all aware Plaintiff provided video of several discriminatory acts on the part of Nashua PD, including but not limited to: a) admonishment not to strike anyone else by Defendant Hargreaves when in point of fact he ignored the fact that a white woman had struck Plaintiff=Appellants camera with a GOP flier; Appellant had NEVER struck anyone he had just completed a professional interview with guest of honor Joe Arpaio (Crowne Plaza); b) threatening to arrest Plaintiff long after he had left the Leased Premises of the GOP at the Crowne Plaza, which unnecessarily chills First Amendment exercise Crowne Plaza event). c) admonishment to stay on the sidewalk when Plaintiff was on the sidewalk already so that Defendant Fisher could continued to talk over Plaintiff and trammel his First Amendment rights to ask the questions of the candidate he wanted to ask, free from unreasonable police intervention (VFW RSVP event).

d) admonishment by Defendant Fisher to stay away from a backing car, interrupting Plaintiffs attempted questioning of Defendant Ayotte on several matters, including but not limited to her policy on allowing for Unconstitutional DNA reporting for NH children; (VFW RSVP event)

Plaintiffs request must be granted unless there is evidence of some sort of fishing expedition aiming to obtain information to initiate an entirely different complaint against someone not a party to the original action. See Myles v. Women & Infants Hosp., 504 A.2d 452 (Rhode Island 1986). The trial justice pointed out that plaintiff was seeking to invoke Rule 27(b) for a purpose for which it was not designed. He stated that the purpose of the rule is to preserve and perpetuate testimony pending appeal for future use and that it was not designed to permit a plaintiff to obtain new evidence that would then serve as a basis for a second malpractice suit. Furthermore, the trial justice found that denial of the motion would not defeat the interests of justice because the lack of a finding in the pathology report concerning recanalization was a speculative and an insufficient reason to warrant an extension of time for plaintiff to depose the pathologist. We agree. But in this case the parties are all the same and the information is in the publics best interests to ensure that the free and critical press is allowed to attend publicly-advertised events at places of public accommodation pursuant to NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986), Pruneyard v. Robbins, 447 U.S. 74 (1980). Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).

RACIAL AND FIRST AMENDMENT CONCERNS: A PROMINENT AND RELEVANT HISTORY IGNORED BY THE TRIAL COURT As noted in the Report and Recommendations by Magistrate Landya B. McCafferty there was an acrimonious past between Defendant Ayotte and PlaintiffAppellant. This acrimonious past however is and was steeped in racial and First Amendment under and overtones because Defendant Ayotte, as NH Attorney General, supported frivolous but hurtful civil and criminal litigation against Plaintiff-Appellant as NAACP Legal Chair. Appellant had simply issued a Demand Letter to a subsequentlyfired Police Chief (Jaffreys Martin Dunn) after he had read police reports and interviewed a black New Hampshire man who faced three (3) drawn police guns held by white officers and a visual body cavity search for LOITERING. That activity is squarely within the advisory ambit of an NAACP Legal Chair yet Ayotte continued on with attempted prosecution on civil and criminal fronts even after she was on Actual Notice via Affidavits that Appellant had not misrepresented anyone or anything in terms of whether he was a licensed attorney in New Hampshire or anywhere else for that matter. But the kicker is, that even though the mans underlying case was dismissed sua sponte from the bench, Defendant Ayotte never did anything to investigate the racial context of this situation, a fact that Appellant put up front and center on his online journals.4 While all charges of attempted felony extortion and unauthorized practice of law against Plaintiff-Appellant were dismissed, withdrawn or nol-prossed (after Plaintiff sat patiently through voir dire) the fact remains that this sort of background between the parties could allow a jury to infer that there is indeed racial animosity, and the events culminated just a handful of years (4) prior to the onset of the events that spawned this litigation so they are hardly remote in time.

4 Plaintiff-Appellant has a formal background in media and news reporting learned in college
and on the job as Editor of The Ohio Call & Post (a statewide Ohio newspaper) and as a reporter for the Indianapolis Star, in addition to dozens of freelance jobs over the years prior to and after law school.

In this case the information sought can help the Court determine the true nature of the event in the fact-driven and historical context to determine whether the limitations on media coverage were unlawful in light of the case law provided by Appellant and not the irrelevant case law cited by the Court or Opposing Counsel. RULE 27 ANALYSIS AS APPLIED TO THE CASE AT BAR (1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court. It is crucial to remember that this case was dismissed on a Motion to Dismiss level, without benefit of any discovery whatsoever. What if Plaintiffs sought discovery resulted in a finding that the GOP alternative press policy was to include any and all alternative press? Then we would have a deviation from that policy that, when coupled with the prior history of Defendant Ayottes prior failed attempts to restrict Plaintiff Kings First Amendment Rights, could prove probative of racial animus.5 In prior pleading that was summarily ignored, Plaintiff-Appellant noted: We dont even know what arrangements the Nashua PD had while they were at this private event. They were wearing uniforms so taxpayer dollars are likely being expended for the private Nashua events. These details are typically paid for with private funds for truly private events. See generally Kim v. Lowell Lodge # 87 B.P.O.E., 17 Mass. L. Rep. 429 (Middlesex 2004). This is yet another crucial distinction that the lower court failed to grasp but which is a distinction of paramount importance: If Nashua PD were present and in uniform then they were likely being paid for by public funds. That, in conjunction with the public nature of the invite, the public nature of the subject matter (i.e. a public Federal election campaign) and the public policy directive to allow for coverage of publicly-advertised political events all militates in favor of a finding that this was

Defendants were quick to argue that Defendant Ayotte was entitled to Prosecutorial Discretion and Immunity with respect to her attempts to imprison Plaintiff as NAACP Legal Chair. However that analysis is perfunctory and limited: As a matter of law, a Jury is still entitled to conclude in this Civil Case that her actions taken against a leader of the Nations Oldest Civil Rights organization demonstrate racial animus in a First Amendment context. The Lower Court attempted to whitewash all of this away, but this Court can be certain that Appellees would have been the first ones to raise the issues had Defendant Ayotte prevailed. i.e. this is yet another specious First Amendment argument by Mr. King, who tried and lost on prior occasion..

indeed a public, rather than private event. This is precisely why Plaintiff-Appellant offered a reasonable solution that campaign events held at a private residence, or true GOP strategy sessions could pick and choose reporters. These events were not held at private residences nor were they GOP strategy sessions. The Lower Court clearly committed reversible error in preventing discovery to ensue in this case. Further, the Courts cited case of Cape Cod Nursing Home Council v. Rambling Rose Rest Home, 667 F.2d 243 (1st Cir 1981) does not involve a Reporters Right to observe and report, but instead involved an area not consonant with mass general public use for political rallies, such as the Crowne Plaza. While Plaintiff is quite certain that the measure of permitting and licensing of a nursing home is quite substantial, it fails on the public policy prong of this analysis and cannot be used for this particularized evaluation. In sum, The entrance into a nursing or rest home is hardly a "traditional public channel of communication."(Cape Cod at 240). But a political rally, however, open to the public and press by mass invitation, is precisely such a venue. It is crucial at this point to again go through the careful analysis offered by Plaintiff on prior occasion before this Court, but which was not addressed in the Decision: As stated above, NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986)(issued AFTER Cape Cod, supra, is a case factually similar to the instant action. In Thompson, the Court held that blacks may attend -- but not actively participate in -- the KKK rally at a private home. The Court attempted to downplay the relevance and significance of Thompson at Fn. 7 by stating: that case involved a county-issued permit system used to exclude certain members of the public based on race. The active state involvement critical in Thompson simply does not exist here. That is not accurate because both cases involved the issuance of faciallyneutral permitting for host venues that was then misused by host venues to discriminate. It is not as if the State itself was practicing the discrimination, as the lower court erroneously implied: In this case we have places of public accommodation that could not operate or house the events in question without substantial licensing and permitting where the licensee is practicing unlawful discrimination.

Once again, note that Thompson even reached into the private residence realm where Plaintiff in the case at bar is taking a substantially more moderate approach contemplated by Pruneyard, Thompson and the other cases cited below, including but not limited to Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Courts must reasonably consider persuasive law from another Federal Jurisdiction in order to compare apples-to-apples and when it does, the yield supports Plaintiff: As NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986) shows Plaintiff has a certifiable constitutional question, the Court can take Judicial Notice that the VFW and Crowne Plaza have to have State and Local permits (liquor, lodging, food & beverage) to operate so there has to be a legal analysis conducted to see whether the amount of permitting and licensing equates to the type noted in Thompson, as Thompson used the Pruneyard rationale the same exact way that Plaintiff used it in the TRO hearing, much to the chagrin of Attorney Middleton: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant's property rights. Pruneyard at 78, 100 S.Ct. at 2039 (citations omitted). From Pruneyard at 81, 100 S.Ct. at 2040 (citations omitted)...... It may well be that Mr. Kelly, by opening his private farm property to the public for a Klan rally did not bestow upon attendees of that rally any right to speak during that rally or to require the Klan to call upon anyone to speak at the rally other than as the Klan desired. But, herein, plaintiffs do not seek the opportunity to speak at such a rally; rather, plaintiffs complain herein of being excluded entirely from attending such Klan rallies.6 ............But, by choice of its owner, the property was, on the occasion of each Klan rally, made open to the public. Having made that choice, the private property owner cannot complain that he has been deprived of his privacy, or of his freedom to use his own private property as he desires, if he is required not to discriminate among the members of the public by excluding all persons belonging to a particular race or to a particular religious group.

KingCast note: That is precisely the distinction Plaintiff is making between Kay v. Bruno, 821 f.2d 31 (1987), and his desire to merely be present and to gather news.

A private property owner can surely invite whomever he selects to attend a private gathering on his property. But when he offers his private property to the public, he has placed himself in a position which enables the government, if it so desires, to impose certain requirements upon him.7 If, as in Pruneyard and in Hudgens, a state or federal statute can require a shopping center owner to permit certain solicitation or picketing within the shopping center, then there would appear no federal constitutional barrier to Frederick County requiring the Klan to hold an open-to-all, non-racially, nonreligiously discriminating, public rally on private property before issuing a permit. KingCast submits that such an analysis is entirely consistent with principles of Heart of Atlanta, supra. Lastly, Justice Rehnquist added in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), Lastly, as to Defendants specious claim that they are immune from liability because they are not State Actors, Plaintiff states the following. First, as in the words of U.S. Supreme Court Justices William Rehnquist -- in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), Our cases make clear that the impetus for the forbidden discrimination need not originate with the State if it is state action that enforces privately originated discrimination. Shelley v. Kraemer, supra. Put simply, the question of whether state action is implicated is a factual matter that cannot be summarily determined on a Motion to Dismiss and without discovery. Plaintiff has sufficiently pled that state action was involved in order to survive the hurdle of F.R.C.P. 12(b)(6) under Iqbal and Twobly, and Moose Lodge, especially given the fact that the taxpayers probably footed the bill for police coverage.

KingCast note: Plaintiffs offer of compromise made in Open Court did not include the Ayotte home. It was, and is, a valid attempt to balance private property rights against matters of public interest as noted in Thompson, supra.

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SUMMATION AND EXPECTED AREAS OF TESTIMONY AND DOCUMENT PRODUCTION Plaintiff-Appellant served Discovery Requests that were unlawfully ignored and not enforced by the trial court. The Plaintiff now seeks to conduct discovery consistent with the following concerns relating only to named Defendants: Nashua Police Chief Conley: The number of meetings or any communication held with GOP Nashua and GOP New Hampshire officials in which access to media was discussed and his recollections of these meetings. Further, the issue of payment, Plaintiff will seek to have Defendant Conley bring any and all payment records for the Crowne Plaza and VFW Hall events to determine whether private parties or the taxpayers paid for the coverage of these events. Nashua Police Sergeant Hargreaves The number of meetings or any communication held with GOP Nashua and GOP New Hampshire officials in which access to media was discussed and his recollections of these meetings. Also why he stated to Plaintiff just dont strike anyone else, and also why he threatened Plaintiff with arrest AFTER he had left the leased premises and clearly told them This is no longer the event, this is a place of public accommodation. Nashua Police Officer John Fischer Why was he singling Plaintiff out for being too close to a backing car when other white people were clearly closer to the car. Who at the campaign told him that PlaintiffAppellant was not allowed in and when? Dennis Hogan: Nashua Republican City Committee Chair. His knowledge of the GOP policy on journalist access, vis a vis why he decided to grant entrance to Plaintiff-Appellant at the Crowne Plaza, and whether he received notice to expel Plaintiff and if so from whom and why? Did he receive any directives from Ryan Williams or Kelly Ayotte or Nashua PD. Why was Appellants RSVP denied at Crown Plaza after he secured it. Ryan Williams: GOP Communications chair. His knowledge of the GOP policy on journalist access, vis a vis why he decided to expel Plaintiff. Everything he remembers about our conversation and why he asked me to leave the Joe Arpaio Steak Out at Crowne Plaza. Why was my RSVP denied at VFW Lodge after I secured it. Kelly Ayotte: When and why did you decide that Plaintiff-Appellant was not entitled to attend your campaign events. Did John McCain influence your decision not to allow PlaintiffAppellant to attend the RSVP VFW event to which Plaintiff reserved his presence? Were you aware that John McCain had recently ejected Stephen Price, the only black reporter at one of his events, without explanation? What is the GOP policy on journalist access vis a vis why you decided to expel Appellant. State why you never investigated any possible racism in the Willie Toney matter in Jaffrey.

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CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Motion & Memorandum was Electronically delivered on 17 October, 2012 to: Jennifer Parent and Jack Middleton, Esq. City Hall Plaza 900 Elm Street Manchester, NH 03101 Gordon MacDonald, Esq. Nixon Peabody LLP 900 Elm Street Manchester, NH 03101 Brian Cullen, Esq. 10 East Pearl Street Nashua, NH 03060 /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D.

617.543.8085m

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