Testimony: Proposal To Limit First Amendment Activity In Central Park

Testimony Of Donna Lieberman, Executive Director Of The New York Civil Liberties Union before New York City Council Parks & Recreation Committee regarding Proposal by New York City Department of Parks and Recreation Limiting the Use of the Great Lawn for First Amendment Activities

The New York Civil Liberties Union submits this testimony in response to the proposal recently published by the New York City Department of Parks and Recreation that would restrict protest activity on the Great Lawn of Central Park to two events a year, neither of which could exceed 50,000 participants. We believe the proposal is misguided and unconstitutional, and if it is adopted as proposed we are prepared to challenge it in court.

For generations the Great Lawn has been the site of expressive events, large and small. This is not surprising, given the Great Lawn’s national symbolic significance and the fact that it is uniquely configured to cater to large, public events. In the name of protecting the grass, however, the Park’s Department’s proposal would end this tradition.

The Parks Department’s proposal suffers from three serious problems:

• By limiting protests with more than 20 people to two events per year, the proposal effectively makes the Great Lawn off-limits to all protest activity, regardless of the risk such activity might pose to the grass.
• By limiting the two allowed protests to no more than 50,000 people, the proposal closes the only open space in Manhattan that can accommodate demonstrations or more than 50,000 people. Under the proposal, the most important demonstrations would have to take place on city streets – a disaster both for organizers and the police – or must take place in another borough or in New Jersey.
• By limiting protest events to two a year but allocating four events on the Great Lawn for two groups favored by the City (the Metropolitan Opera and the New York Philharmonic), the proposal impermissibly privileges events supported by the City and discriminates against events that the City does not support.

Introduction

For decades the NYCLU has been at the forefront of protecting the First Amendment rights of New Yorkers and for many years we have been centrally involved in negotiating permits for groups wishing to hold protest events in New York City. Each year, we help dozens of groups obtain permits from both the Parks Department and the New York City Police Department for protests, rallies, and marches. As just one example, the NYCLU represented virtually every group that held a large demonstration during last year’s Republican National Convention, including two groups that had sought to use the Great Lawn for large protest rallies.

It was in the course of the NYCLU’s negotiations with the Parks Department last spring about proposed Convention rallies on the Great Lawn that the Department first disclosed plans to close Central Park to large protest rallies. On July 6 the NYCLU wrote to Mayor Bloomberg calling his attention to this matter and asking him to assure that the Park remained open for political activity. (A copy of that letter is attached to this testimony.)

We received no response from the Mayor, and the Parks Department refused to allow any political rallies to take place on the Great Lawn during the Convention, which produced a substantial public controversy about the use of Central Park. In the weeks leading up to the Convention, high-level officials from the NYPD told us that they opposed the closing of the Great Lawn to large events on public-safety grounds, since such events would then be forced out on to the street.

The Parks Department’s Proposal Is Misguided And Unconstitutional

Like most advocates, we recognize the value of parks that have grass, trees and usable open spaces. Moreover, we do not dispute the idea that the Great Lawn is a special place. None of that, however, justifies the Parks Department’s proposal, which we believe suffers from three serious problems.

The proposal would close the Great Lawn to protest activity regardless of any risk of damage to the grass

The Parks Department proposal would allow only two protest events each year on the Great Lawn, regardless of the size or nature of the event. As drafted, the regulations limit “special events” on the Great Lawn to only two events other than the Metropolitan Opera and New York Philharmonic. See Proposed Amendment to 56 RCNY 2-08. The Parks Department treats any event with more than 20 participants as a “special event,” which means that the proposal would bar protest events with as few as 21 participants.

Events involving dozens, hundreds, or even a few thousand people pose no threat to the well-being of the Great Lawn. Whatever the merit of regulating use of the Great Lawn to preserve the grass, such an interest cannot justify the sweeping ban proposed by the Parks Department.

The proposal would endanger public safety by forcing large public assemblies on to City streets

The Great Lawn is the only open space in all of Manhattan that can accommodate events drawing more than 50,000 people. If such events are barred entirely from the Great Lawn – as they are under the Parks Department’s proposal – the only place where they would be able to take place is on City streets.

We know from experience that forcing large events on to City streets poses many problems. First, it fundamentally changes the nature of a rally if tens of thousands of people, rather than being able to assemble in an open and grassy area, are forced to stand on paved streets, surrounded by police barricades, and long distances away from stages and sound systems. Simply in terms of proximity, one should realize that an event with just 60,000 people on a wide Manhattan avenue would stretch at least 20 blocks from the stage, effectively removing most people from direct participation in the event.

Second, holding a large event on a City street substantially burdens event organizers. Not only are such events much more difficult to organize and run, but they are far more expensive because organizers have to rent sound systems and even jumbotrons so that people forced blocks away from the stage can see and hear what is happening. The cost of extending amplified sound alone a mile (20 blocks) from the stage can run into tens of thousands of dollars, which alone can make events prohibitively expensive for many groups.

Finally, and perhaps most significantly from the perspective of this Committee, forcing large events on to public streets would pose substantial public-safety problems. As was dramatically illustrated by the February 2003 anti-war demonstration that was forced onto First Avenue near the United Nations, City streets are no place to put tens or hundreds of thousands of people. Because of crowd control tactics employed by the NYPD – including restricting access to events, using horses to control crowds, and using interlocking metal barricades to contain crowds – there is enormous potential for unnecessary police-civilian conflict.

High-level officials from the NYPD have made it clear to us that they believe that public-safety considerations strongly favor putting large events in Central Park rather than having them on the street. If the trade-off the City faces when deciding where to allow the occasional political rally that exceeds 50,000 people is one of damage to the grass versus public safety, we submit that public safety considerations should control.

The proposal impermissibly favors government-sponsored speech

The third major objection we have to the Parks Department’s proposal is that it bases the availability of Central Park for large events on whether the event is approved by the City or not. Events that the Bloomberg Administration likes – such as concerts by the Metropolitan Opera and New York Philharmonic – are guaranteed at least four large events on the Great Lawn every year. Everyone else is limited to a total of two events, even if the event would have the exact same impact on the grass.

This is an inappropriate and unlawful basis for making decisions about the use of public spaces for expressive activity. No more than could the City restrict the use of the steps of City Hall to City-sponsored press conferences or reserve the use of Fifth Avenue for City-sponsored parades can it restrict the use of the Great Lawn to City-sponsored assemblies.

If the City wants to regulate the usage of the Great Lawn, it certainly can do so. What it cannot do is discriminate between speakers based on whether the City favors the content of the speech or not. If the City intends to impose numerical limits on the number of permits it issues for large events on the Great Lawn, all speakers must have an equal opportunity to obtain a permit.