| While I don't doubt the mayor's belief in freedom of speech (having exercised it himself quite a bit), it's beyond my comprehension why he hasn't gotten the house in order when it comes to his citizens' fundamental protest rights. The ACLU-NJ has been forced to expend significant time and effort just to secure our clients' basic protest rights.
Some of you will recall the ACLU-NJ's Kafkaesque four-plus years of ongoing litigation against the city for putting up illegal roadblocks to people's protests and demonstrations, like requiring anyone who wants to hold a rally to purchase $1,000,000 worth of liability insurance.
We recently resolved that case, but just as it came to a close, the city passed a new ordinance which, although intended to address the costs of community events like the Portuguese Festival, also established at least three new unconstitutional barriers to free speech:
- It requires a permit for any free speech activity, rather than following the previous standard of requiring permits only for activities that call for the closure of a street or sidewalk.
- It requires groups engaging in First Amendment activities to pay a percentage of the costs for police and other services associated with the activity. The city will absorb the costs for incorporated 501c3 groups, but absorbing some of the costs doesn't cut it. Providing police services for citizens exercising First Amendment rights is simply a cost of running a democracy - something our tax dollars already cover. If you charge people for engaging in free speech activities then the speech is no longer free, and only people with financial means have the right to political expression. Moreover, most of the groups we have represented on free speech cases are not incorporated as 501c3 groups; they're just people exercising their right to speak out.
- It requires 60-day notice for all activities requiring a permit. Although it makes an exception of requiring five days' notice for free speech activities in response to "an event that is not anticipated," it is unclear what the notice requirement is for free speech activities that are anticipated. In other words, protest organizers may have to give 60 days' notice to hold a general rally against police brutality or the war in Iraq, and protest organizers of a march in response to the death of the 5,000th soldier dying in Iraq have to give five days notice. Those of us who have engaged in political or grassroots activities know that organizing doesn't usually take place on these unworkable, unreasonable and unnecessary time frames. Also, although there is an appeals process for permit denials, it appears that it must be received seven days before the event, which means there's no appeal for the denial of a permit on a five-day application. The right policy would be to require 48 hours for any free speech activity.
While the intent of the ordinance may not have been to infringe upon free speech rights, given the city's history of poor policy implementation we can't allow an unconstitutional ordinance to remain on the books. The ACLU-NJ
sent a letter to the city asking for revisions to the policy. In the meantime, groups are still experiencing roadblocks to their right to free expression in Newark. In May the New Jersey Industrial Union Council tried to obtain a permit for a health care rally in Washington Park. The organization was told that its rally was not protected free speech because no one was technically "marching." Rather, the city of Newark labeled its public education efforts as a "fair," which would require insurance. Once again, lawyers had to intervene to get it straightened out.
How hard is it to - once and for all - put a good policy in place and educate city hall workers on how it should be applied?
In light of the mayor's pledged support for free speech activities in the city, and the extent of problems people have encountered, he needs to be held accountable for leadership when it comes to free speech in the city. This includes seeing the new ordinance revised with the language the ACLU-NJ has provided, ensuring that all forms used by the city for permits are accurate, clear and constitutional, and training city hall staff to actually implement city policies relating to free speech.
Our attorneys are meeting with city attorneys next Wednesday. If that meeting doesn't result in an agreement to revise the ordinance and train city hall workers, I just might just hold a protest. If I submit my permit today, then I have 60 days to save my money to pay for it. |
