The Council Of The City Of New York Committee On Parks, Recreation, Cultural Affairs And International Intergroup Relations Hearings On The Department Of Parks And Recreation Testimony of Donna Lieberman, Interim Executive Director and Marina Sheriff, Legislative Director on behalf of the New York Civil Liberties Union Thank you, members of the committee, for holding these hearings and for your concern about the issues relating to the use of public parks. Recent events have raised serious policy questions about which we have been concerned for some time regarding the use of public parks. We are concerned about the apparent practice of charging fees for activities protected by the First Amendment, and the lack of clear standards for the amount of such fees. We share your concern about the apparent practice of diverting funds raised as a condition for using the parks to private organizations that then may use those funds for purposes that could not properly be funded by the City. We are also concerned about the apparent lack of guidelines or any consistent policy about when, and under what terms, private use of public parks is appropriate, and what conditions can or should be placed on that use. In some cases, would-be park-goers are being subjected to suspicionless searches by private permit-holders, a practice that raises serious issues about when a private entity using a public park is permitted, or perhaps even required, to impose restrictions that the City itself could not, constitutionally, impose. Our first concern relates to the charging of fees for activities protected by the First Amendment. Based on press reports, the Parks Department has a practice of requiring certain groups to pay fees for the use of City parks for events protected by the First Amendment. We have not had the opportunity to review thoroughly the proposed rules that were published yesterday, but based on our preliminary review, they too would permit the charging of quite substantial fees for protected activities. While administrative fees may be charged for the use of public property for First Amendment activities, those fees must be governed by clear, objective standards, and must be limited to administrative costs associated with the event. In Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992), the U.S. Supreme Court invalidated on its face a fee scheme that gave government officials wide discretion to set fees for use of public property for a range of events. The Court also held that the ordinance was unconstitutionally content-based, because it required the administrator, in assessing the cost of security, to take into account the content of the message and the estimated public response to that content. The challenged fee in that case was $100. The ordinance in question capped fees at $1000. In Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050 (1983), the Second Circuit held that a $200 administrative fee could not be sustained in the absence of a showing that it was necessary to offset the expenses associated with processing the application. Against this background, we are troubled by newpaper reports indicating that that Gay Men’s Health Crisis was charged $40,000 for use of the park for its May, 2000 AIDS walk, the American Diabetes Association $15,000 for its June 2000 bikeathon, Transportation Alliances $6,000 for its September bikeathon, and National Down Syndrome Society $2,000 for its September 1999 Buddy Walk. Both the size and variation in these charges are cause for concern. We are also concerned about the apparent diversion to private organizations of payments required as a condition to receiving a permit for use of City Parks. The most dramatic example reported in the newspapers is the $1 million Best Buy paid to the New York City Public/Private Initiatives and to the Central Park Conservancy. It seems evident that, as a policy matter, funds paid as a condition for use of the public parks should be paid to the City. The City then may use those funds for any permissible purpose. Diverting funds to a private organization means that they could be used directly or indirectly to fund purely private projects, like the publication of the Mayor’s book by the New York City Public/Private Initiatives. It also raises the troubling specter that funds could be used for activities that may not, constitutionally, be funded by the government, such as scholarships to parochial schools. The lack of guidelines relating to private use of public parks raises other troubling concerns. We have observed with alarm the practice of permit-holders subjecting park-goers to intrusive searches as a condition to entry to the park or to the area of the park where the event is taking place. We are aware of at least three separate events this past summer where such suspicion-less searches were conducted. I will briefly describe one of those, at Harris Park in the Bronx on August 20, 2000, at an afternoon salsa concert. Police barriers were erected, and staffed by police officers, blocking access to the park and permitting the concert organizers to funnel all park-goers through a single aisle of metal barricades. At the front of the line private security guards required would-be park goers to submit to a search of their bags and the men were searched with hand-held magnetometers. The women received different treatment: their bags were searched but they were not uniformly required to submit to the magnetometer. In general, the men were instructed to assume a position with both arms held out as they were scanned with the magnetometer. We are also aware of searches of bags that took place at an earlier event in Harris Park on August 6, 2000, and at the Best Buy Sting Concert in Central Park on September 12, 2000 The practice of delegating, mandating, authorizing or allowing a private entity to conduct searches as a condition of entry in a public park raises a number of grave legal and policy concerns. I will discuss two such issues at this time. The first, and one that we ask that you investigate, is the extent to which the Parks Department or the NYPD encourages, or even requires, private organizers to conduct searches that would be unconstitutional if conducted by the government. In response to an inquiry from the NYCLU, Parks Commissioner Henry Stern stated that "Parks did not specifically require the security measures at the August 6 and August 20 events at Harris Field or at the Sting Concert in Central Park" (emphasis supplied. Letter dated October 11, 2000). Commissioner Stern went on to note that Parks agreed with the proposed security measures. We urge the committee to investigate the involvement of the Parks Department and the NYPD in these and other searches conducted on park-goers. On the subject of requiring donations for use of the parks Commissioner Stern has been quoted as saying that "some donations are more voluntary than others." We ask you to investigate whether some of these searches, too, are "more voluntary than others," and to promulgate clear standards regarding what security measures are permitted or required. These searches, and the lack of standards, also raise the question of why park-goers at certain events, and not others, are the target of search activities. Commissioner Stern acknowledged to The New York Times that his department "did not have uniform security guidelines for promoters." The lack of guidelines raises again the persistent question as to the degree to which race, or other stereotypes, is a factor in determining who is targeted for stop and search activities. Commissioner Stern stated to the The New York Times, "obviously, when they are doing Verdi, there is no need for the security that you might need at a rock concert. The middle-aged people at the opera, nobody is going to hurt a fly." We must seriously question a system that allows the City to determine which citizens may be subject to searches based on a stereotype that those who enjoy rock or salsa music are more dangerous than those who enjoy opera. In closing, we wish to thank the committee for your attention to this matter. Our parks have traditionally been, and must remain, places of assembly and communication open to all. We urge you to adopt policies setting forth clear guidelines that preserve that basic principle.