Testimony: Regulating First Amendment Rights at the Republican National Convention

I am Donna Lieberman, executive director of the New York Civil Liberties Union (“NYCLU”). The NYCLU is the state affiliate of the American Civil Liberties Union. Since 1951 the NYCLU has been our state’s leading advocate on behalf of New Yorkers’ civil rights and civil liberties as articulated in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

I present testimony today in support of New Yorkers’ First Amendment rights to freedom of speech, association and assembly at the forthcoming Republican National Convention, and in support of Resolution 389-A – which calls for affirmative measures to affirm and protect these rights.

New York City has a long tradition of free and robust speech, and the occasion of the Republican National Convention (“RNC”) will test the City’s commitment to First Amendment rights. The NYCLU applauds the Governmental Operations Committee for convening today’s hearing on the regulation of First Amendment activities at the RNC. We commend Speaker Gifford Miller and Deputy Majority Leader Bill Perkins for introducing Resolution 389-A.

We are now at a defining moment in our nation’s history. New Yorkers, along with all Americans, are deliberating upon issues of great significance to our nation’s future. All across the country Americans are discussing issues of war, public safety, civil rights and social justice.

The Republican and Democratic national conventions are central to the national discourse on these important issues. In late August, the streets of New York will fill with groups and individuals from across the country expressing viewpoints and opinions on the direction that our nation should take. Demonstrators in favor of and in opposition to the policies of the Bush Administration will arrive in our City to engage in what will be a great public conversation between the people and their elected officials. All eyes will turn to New York City on the occasion of the 2004 Republican National Convention. It is incumbent upon City officials to greet demonstrators with the same respect and honor accorded to conventioneers.

Unfortunately, New York City has a history of problems regarding the regulation of First Amendment activity. As of the date of this hearing, the City administration has not approved any permit applications for a public demonstration related to the RNC, even though approximately fifteen applications have reportedly been filed. The administration has unreasonably denied a permit to the organization United for Peace and Justice, which has sought to hold a march culminating in a rally in Central Park. Reports suggest that some City officials are considering the establishment of “no-protest zones” around Madison Square Garden during the Republican National Convention, which will prevent persons from participating in lawful public demonstration within sight and sound of the object of such demonstration.

In addition, there have been recurring complaints in recent years regarding the manner in which the New York Police Department has used metal or wooden barricades as a means of controlling access to as well as mobility of crowds at public demonstrations. A recent and dramatic demonstration of the conduct giving rise to such complaints occurred in New York City on February 15, 2003. On that day the organization United for Peace and Justice sponsored a massive anti-war rally on the East Side of Manhattan. The NYPD employed barricades to block cross-streets leading to the demonstration site, as well as block-long pens for containing demonstrators at the demonstration site. As documented in the NYCLU report “Arresting Protest,” the perimeter barricades as well as the pens created significant obstacles to those seeking to exercise their First Amendment rights at the demonstration.

Surveillance of organizations and individuals engaged in lawful political activities continues to be a concern, particularly given the relaxation of the Handschu and FBI guidelines on political surveillance. These guidelines, which were established pursuant to a consent decree in the matter of Handschu v. Special Services Division, were intended to address widespread abuses related to the police surveillance of lawful political activity. Indeed there is a history of NYPD engagement in aggressive use of political surveillance that seems to correlate with the level of political activism and the degree of social insecurity.

During the 1960’s, the NYPD averaged 1,600 political investigations of dissident groups and individuals per year. The targets of such police investigations included the NAACP, the ACLU, CORE, the Fifth Avenue Peace Parade Committee, and the Lower East Side Mobilization for Peace Action. As political ferment grew in the late 1960’s, the NYPD’s intelligence unit expanded beyond infiltrating organizations and gathering information. As described by an authority on the topic, informants and infiltrators were used as agents provocateurs to disrupt the activities of political organizations and to facilitate the arrests of organizational activists.

A federal court recently granted the NYPD’s request to relax significantly the guidelines for oversight of police surveillance of political activity. The NYPD argued that the decree’s procedures and guidelines were unduly restrictive. There are, however, grounds for real concern that the new, relaxed Handschu guidelines will open the door to the types of abuses the original decree was intended to prevent.

The NYCLU recognizes that City officials are charged with a duty both to protect public safety and to uphold the rights of free speech and expression. Yet there is no inherent conflict between these dual responsibilities to protect safety and to uphold the right to engage in lawful political activity.

By voting for Resolution 389-A, the City Council will declare that robust and unfettered public discussion of public issues is a civic virtue that must be protected and permitted to the greatest extent possible, subject only to reasonable time, place, and manner limitations.

The New York Civil Liberties Union has identified four areas of concern that must be addressed by City officials in order to protect the rights of persons engaged in expressive activity in the City’s public spaces: first, the City’s regulation and administration of expressive activity; second, the creation of no-protest zones around Madison Square Garden; third, the use of pens and barricades and use of force by police at events involving expressive activity in relation to the Republican National Convention; and fourth, the surveillance and infiltration of lawful political groups seeking to engage in peaceful expressive activities in conjunction with the Republican National Convention.

I will address each of these issues individually.

Regulation and administration of expressive activity

City officials must take prompt action on permit applications. They should announce immediately to those applying for permits and to the public a schedule by which decisions will be made regarding permit applications for demonstrations related to the RNC. There should be no unreasonable denials of permit applications, and no issuance of permits that place unreasonable constraints upon expressive activity. Should a permit application be denied in whole or in part, the City administration should explain in writing the basis for the denial and offer the applicant a suitable alternative.

Moreover, City officials must take immediate steps to disseminate information to the public, within New York City and beyond, about the types of Convention activities for which permits are required as well as the application procedures for obtaining such permits. Officials should also post on the City’s website and elsewhere a schedule of Convention demonstrations and marches for which permits have been granted, including the date, time, and location of the approved events.

Finally, City officials should implement a program that trains and instructs police officers and others involved in handling demonstrations related to the RNC and other large events about the First Amendment rights of persons and groups that organize and participate in demonstrations, rallies, and marches. Before initiating the training, the City administration should make a curriculum and training materials available to interested groups for review and comment. This training program on First Amendment rights should be incorporated into the police department’s ongoing training program.

No-Protest Zones

While special measures may be required to protect the safety and security of certain public officials who attend the Republican National Convention, such concerns cannot become a pretext for security measures that unduly frustrate or deny participation in protected First Amendment activity.

Therefore, the NYCLU calls on the City administration to allow demonstrations to take place in close proximity to and within sight and sound of Madison Square Garden or other locations where Convention activities take place. As reported in a recent Newsday article, Commissioner Kelly promised in January to allow demonstrators within sight and sound of Madison Square Garden.9 It is essential the City officials and the Police Commissioner commit to upholding this promise.

Barricade, pens, and use of force by the NYPD

The NYPD’s unreasonable use of barricades, pens, and force—particularly pronounced during the February 15, 2003 antiwar demonstration—must be avoided at the Republican National Convention. The City administration should make every effort to facilitate the ability of people to gain access to Convention demonstrations. City officials should take affirmative steps to inform event organizers and the public about how to attain access to the demonstrations. These steps may include providing written information and maps to event organizers, posting access information on City websites, issuing press releases or public service announcements regarding access routes, and providing clear and accurate access information to members of the public at locations that are closed.

The City administration must as a matter of policy minimize the use of barricades to confine the movement of people at demonstrations. Four-sided enclosures known as “pens” should not be used except in limited circumstances based on a legitimate and reasonable security concern. In such limited circumstances the City administration should ensure that such pens have openings sufficient to permit people to enter and exit pens freely and to move around or leave a demonstration site and reenter pens provided there is room. The administration should further ensure that police officers are properly trained and instructed in facilitating ingress and egress when pens are used.

The NYPD should ensure that police officers refrain from the use of force—including the use of horses, pepper spray or other instruments of force—in policing public demonstration except to the minimal extent required as necessitated by legitimate law enforcement purposes. In any situation in which the City intends to use mounted officers, it must assure that department officials are adequately trained. Should mounted officers be used to disperse demonstrators, it should do so only after providing the demonstrators with clear warnings and after ensuring that demonstrators have been given an opportunity to disperse and in fact have the ability to do so.

Surveillance and infiltration of political groups

The lawsuit known as Handschu led to a 1985 consent decree that prohibited the NYPD from “commencing an investigation” into political, ideological or religious activities of an individual or group unless “specific information has been received by the Police Department that person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime. . . .” The Decree also imposed various procedural limitations as a check against abuse and as a vehicle for maintaining a “paper trail” in the event that violations of the Guidelines were to arise.

In September, 2002, the NYPD moved to modify the 1985 consent decree in the Handschu case. In a decision issued in February 2003, Senior United States District Judge Charles S. Haight Jr. held that the NYPD should be permitted to substitute the investigative standards employed by the FBI — as set forth in the Guidelines on General Crimes, Racketeering Enterprise and Terrorism Investigations, issued by Attorney General Ashcroft in May 2002 — for the substantive and procedural standards previously set forth in the 1985 Consent Decree.

In effect, Judge Haight approved preliminary inquiries of political activities by the NYPD in circumstances where there is “information . . . which indicates the possibility of criminal activity.” (Italics added.) The new Guidelines suggest that a preliminary inquiry must be authorized by the commanding officer of the criminal intelligence office of the NYPD with notification for final approval by the Deputy Commissioner of Intelligence. But this suggestion is somewhat ambiguous. Res. 389-A seeks to clarify this potential ambiguity and to require explicitly that such authorization must be secured; that it must be in writing; and that a paper trail must be maintained in the office of the police commissioner.

By not addressing explicitly the documentation of police inquiries and investigations into political or religious groups and organizations, the new Handschu guidelines omit important procedural protections that are necessary to ensure oversight and accountability regarding these police activities. Accordingly, Resolution 389-A also states that, notwithstanding the relaxed oversight standards in the amended guidelines, the NYPD will not engage in the investigation or surveillance of religious or political organizations based solely upon the First Amendment activities of persons involved or associated with such organizations.

Conclusion

The provisions of Res. 389-A embody fundamental principles long recognized in First Amendment jurisprudence. These same principles are also reflected in a Memorandum of Understanding that members of New York City’s Congressional delegation are seeking to enter into with Mayor Bloomberg. Res. 389-A and the Memorandum of Understanding share a common objective: that New York City will demonstrate its greatness on the occasion of the Republican National Convention by celebrating the democratic principle of individual freedom. This principle can best be celebrated by according full respect to the rights of speech, expression and association to all who seek to have their ideas and opinions seen and heard at the Republican National Convention.

The NYCLU calls upon the City Council to add its influence and authority to fulfilling this great initiative.