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Op-Ed: City Policies Stifle Speech

By Donna Lieberman and Robert Perry — In this country, when there is strong disagreement with the actions of the government – actions taken in the name of the people – the people protest. They march.

There is a long, proud, American tradition of “talking with our feet.”

But this week the court said there would be no march at a February 15 demonstration sponsored by United for Peace and Justice. And notwithstanding the court’s attempt to frame ever so narrowly the grounds on which it denied the right to march – the court’s ruling has diminished the Constitution.

In the process of this litigation, the police department has itself diminished the First Amendment – and the principle that we have a right to give voice to our ideas, and to take to the streets in orderly fashion to make our voices heard.

Here is what happened:

In attempting to negotiate a march past the United Nations, the police department first stalled, promising an alternative route. We agreed, at the city’s request, not to file a lawsuit.

The NYPD finally put an alternative route on the table, but then withdrew it.

By now the demonstration date was nearing and we were compelled to go to court. The city refused to negotiate a compromise, and the court rejected our claim. Was this zealous advocacy – or bad faith — on the part of the city?

Through the process of the litigation we learned, from the sworn testimony of a police department official, that the police department has had a practice of not providing permits for political demonstrations involving more than one thousand people. Is this a matter of the public safety or the suppression of dissent?

We also learned that a new police department regulation bans all “new demonstrations” down Fifth Avenue. The large, raucous traditional parades, known for rowdiness and violence, will continue to receive a permit. The less well affiliated — proponents of peace or civil rights, perhaps — will have to take their speech elsewhere. Is this a sign of respect for tradition, or a new zero-tolerance policy toward speech the mayor or police commissioner find unacceptable?

The fact is, the police department has become increasingly hostile toward what constitutes permissible speech and expression – not only toward demonstrators – but toward the law the police are sworn to serve; toward the great body of First Amendment jurisprudence that gives broad protections to the right of speech and expression.

The Supreme Court has recognized an important principle at issue here, describing a parade march as a “public drama of social relations” in which “marchers are making some sort of collective point, not just to each other but to bystanders along the way.”

We call on our mayor and police commissioner to recognize that the First Amendment principle of free speech and expression cannot be interpreted as if it were a traffic regulation.

We call on the City Council to come to the defense of New Yorkers’ First Amendment rights by conducting hearings on police department practices and policies regarding political demonstrations.

Donna Lieberman is executive director with the New York Civil Liberties Union; Robert Perry is the NYCLU’s legislative counsel.

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