NYC Free Speech Threat Assessment

Reporting on Risks to the Right to Protest in New York City

The NYCLU “Free Speech Threat Assessment” project documents risks to First Amendment activity as a result of heavy-handed NYPD policing and harassment of individuals engaged in the right to protest.

Protecting the right to protest has been foundational to the work of the NYCLU for more than 60 years. Most recently, we have been dedicated to monitoring and responding to the mass protests that erupted in New York City after a grand jury failed to indict an NYPD officer in the death of Eric Garner, playing the same role as we have for other recent mass protests including Occupy Wall Street in 2011 and the Republican National Convention in 2004.

This webpage contains summaries of policing activity during mass protests compiled by the NYCLU’s teams of protest monitors, reports from the public, and news reports and video.

While many mainstream media accounts of protest activity document if police officers’ use excessive force, the NYCLU’s “Free Speech Threat Assessment” reports on subtler harassment and intimidation of protesters by law enforcement. Harassment and intimidation by police can be more pervasive and may deter freedom of expression and assembly as much as highly publicized arrests or uses of excessive force.

These reports are intended to raise the general public’s awareness of policing practices and assist people, including policy makers, in the reforms necessary for New York City to protect protest activity.

Free Speech Threat Assessment # 1: March 17 to April 10, 2012
The NYPD’s approach to public protest from March 17 to April 10, 2012 was characterized by multiple instances of unnecessary uses of force, pervasive selective enforcement of laws, targeting of journalists, the continued and excessive use of barricades, and surveillance of people engaged in legal activities. Click to download.
Free Speech Threat Assessment # 2: April 11, 2012 to April 28, 2012
The NYPD’s approach to public protest from April 11, 2012 to April 28, 2012 was characterized by the excessive use of barricades, continued selective enforcement of laws, as well as harassment and arrests without legal cause, some excessive force, and the disparate treatment of non-credentialed journalists. Click to download.
Free Speech Threat Assessment # 3: April 29, 2012 to May 29, 2012
The NYPD’s approach to public protest from April 29, 2012 to May 29, 2012 was characterized by continued excessive barricading, the harassment of journalists and others taking pictures, the selective enforcement of laws, unjustified arrests, and numerous instances of excessive force. Click to download.
Free Speech Threat Assessment # 4: May 30, 2012 to June 17, 2012
The NYPD’s approach to public protest from May 30, 2012 to June 17, 2012 was characterized by continued extensive barricading and restriction of protesters’ movement, use of force, the mistreatment of journalists, illegal surveillance, the selective enforcement of laws, and unjustified arrests. Click to download.
Free Speech Threat Assessment #5: June 17, 2012 to August 1, 2012
The NYPD’s approach to public protest from June 17, 2012 to August 1, 2012 was characterized by the excessive use of force, mistreatment of journalists, multiple restrictions of protesters’ movement, selective enforcement of laws, harassment and unjustified arrests. Click to download.
Free Speech Threat Assessment #6: August 1, 2012 to August 31, 2012
The NYPD’s approach to public protest from August 1, 2012 to August 31, 2012 was characterized by the excessive use of force, mistreatment of journalists, multiple restrictions of protesters’ movement, selective enforcement of laws, harassment and unjustified arrests. Click to download.
Free Speech Threat Assessment #7: September 1, 2012 to December 31, 2012
The NYPD’s approach to public protest from September 1, 2012 to December 31, 2012 was characterized by the excessive use of force, mistreatment of journalists, multiple restrictions of protesters’ movement, selective enforcement of laws, harassment and unjustified arrests. Click to download.
Free Speech Threat Assessment #8: November 26, 2014 to January 2, 2015
The NYPD's approach to public protest from November 26, 2014 to January 2, 2015 showed a departure from past practices of excessive force and mass arrests. Click to download.

How to get involved: If you are interested in becoming a protest monitor, please contact Ruby Ogno at rogno@nyclu.org. You can also download the NYCLU’s Stop and Frisk Watch app for iPhone or Android to send us recordings of things you observe while participating in demonstrations.


POLICING TRENDS AND IMPACT


INTERFERENCE WITH REPORTERS, CITIZEN JOURNALISTS AND LEGAL OBSERVERS

Reporters, legal observers and the general public all have a First Amendment right to observe, photograph and otherwise document police activity as long as they are not interfering with police work and obeying all other laws. However, there have been numerous reports of police unjustly prohibiting both journalists and civilians from taking pictures and video footage. Some officers have even broken or confiscated cameras and deleted photos.

While the NYPD is well aware of the right to document police activity, it has created a selective credentialing system that only permits a small minority of primarily mainstream journalists to cross police lines to get close to scenes of certain events. On occasion, officers have infringed even on the freedom of these credentialed journalists by blocking their cameras, keeping them away from protests, and even arresting or injuring them.

BARRICADES AND IMPEDIMENTS TO MOVEMENT
The First Amendment protects freedom of assembly. However, physical barricades are frequently used to impede lawful protest activity in New York City. Some of the most common recent barricade uses, such as lining streets during a march, are not inherently problematic. Barricades are frequently deployed to divert traffic, as well as to guide protesters toward streets that are blocked off for their own safety.

However, barricades have also been used to unreasonably prevent or hinder people from entering or exiting public spaces such as parks or sidewalks. Even when barricades that surround public spaces offer some clear and accessible openings, restricting areas makes many people feel uneasy and can deter others from taking part in the protest. Even onlookers are deterred from speaking to protestors when police form barriers around them and tell onlookers to move because of traffic even though they have stopped only briefly.

During Occupy Wall Street, Zuccotti Park was barricaded except for two small openings where security guards were stationed to search the possessions of all people attempting to enter. More recently, the NYCLU observed excessive use of barricades during a “die in” outside of News Corp headquarters in January 2015.

SELECTIVE ENFORCEMENT AND FALSE ARRESTS
Protesters have the right to speak and assemble, the right to equal enforcement of the law and the right to not be arrested without cause, which means that they should not be subjected to arrest just because they are protesting. In 2011 during Occupy Wall Street, protesters were routinely arrested and harassed due to the NYPD and Parks Department’s selective enforcement of minor regulations that are never or rarely enforced in other circumstances. For example, protesters were harassed and arrested for holding large banners, placing signs on the ground, walking in the street for a short period of time, sleeping on a sidewalk, using tables to distribute food and literature, drawing with chalk, speaking or playing instruments too loudly, being present in public parks normally open to the public after curfew, dancing, singing, wearing masks, having large bags and using blankets.

During the Ferguson and Eric Garner protests in late 2014, the NYCLU observed fewer unjust arrests, a credit to the de Blasio administration and the NYPD. Police officers were willing to allow protesters to march in the streets and, in some cases, block traffic for short periods of time with “sit-ins” and “die-ins.” While many individual protestors were arrested, no large groups of protesters were arrested en masse.

However, people reported that after arrests, officers later showed up at their homes and asked questions about their social media activities and relationships with other protest organizers. Such interrogation has the potential to chill protest activities and scare would-be protesters who fear officers prying into their online networks. This trend also raises serious legal questions about the NYPD’s compliance with court orders not to engage in surveillance of peaceful protestors.

SURVEILLANCE, RECORDING AND MONITORING OF PUBLIC PROTEST
People who wish to legally protest without fear of being tracked by law enforcement can be intimidated and deterred by obvious police videotaping and surveillance. Even non-protestors are deterred from observing or talking to protestors when police monitor who enters and exits gatherings. Moreover, the NYPD must comply with a longstanding court order prohibiting it from documenting and creating dossiers on people engaged in legal protests.

Currently, there is heavy video surveillance of lawful protest by NYPD officers all over New York City, especially in Manhattan. The NYPD can access footage from private cameras attached to many businesses, and Technical Assistance Response Unit (TARU) officers carry video cameras. During Occupy Wall Street in 2011, TARU officers were known to frequently videotape protesters who were merely standing or walking on sidewalks or engaged in other legal activities.

TARU officers continue to be present at large Eric Garner protests, although they are rarely seen videotaping peaceful protesters. Many police officers are also regularly deployed to peaceful protests to visually monitor the scene. Plainclothes and undercover officers both are permitted to attend protests and public meetings without identifying themselves as police officers.

UNNECESSARY USE OF FORCE AND OVERPOLICING
Protesters have a right to be free from undue force under the First and Fourth amendments. However, non-violent protests in New York City are sometimes punctuated by unnecessary uses of force. Examples include hitting protesters with batons, punching, pushing and shoving, ramming protesters with scooters and using pepper spray. Unnecessary force is often witnessed when police are attempting to disperse a crowd or force protesters to move in a certain direction. At least once in December 2014, the NYPD deployed a Long-Range Acoustic Device (LRAD), sometimes called a “sound cannon,” as a means of crowd dispersal. These military-inspired devices can cause permanent hearing loss and are deployed without known policies or guidelines in place.

Moreover, the sheer number of police with scooters, batons, guns and riot gear present at events can intimidate those present and deter them from speaking freely. Displays of weapons and force can also deter non-protestors who are interested in observing a demonstration or speaking with protestors about the issues involved. During the Eric Garner protests in December 2014, NYCLU monitors reported seeing large groups of officers standing with batons in hand or in full riot gear, even when no threat existed