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Marches at a standstill: the new limits on assembly

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

02.23.03

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The "Huddle on Washington" just doesnít have the same ring to it.

Americans have exercised their First Amendment right to hold protest marches throughout much of the nationís history, encouraging social and political change through highly visible demonstrations.

The tide may be turning, however, as Americaís cities appear increasingly reluctant to allow protest marches, citing security and cost concerns.

Last weekend, organizations opposed to a possible war in Iraq had hoped to march past the United Nations building, but the city of New York rejected the application for a permit. That decision was upheld by a federal court judge and the 2nd U.S. Circuit Court of Appeals, which accepted the cityís argument that the march posed a special threat to security, and that organizers were not able to provide a reliable estimate of the number of participants.

This city did offer an alternate site for a stationary rally, penning protesters in a nearby plaza and adjoining blocks.

On the face of it, the cityís action didnít violate the First Amendment. While the right of assembly cannot be denied, cities do have latitude in coordinating the time and place of such events when there are other significant community interests to consider.

The real problem is that over the past few years, cities have routinely curtailed freedom of assembly. More recently, fear of terrorism is trumping the exercise of this fundamental right.

Itís one thing to deny a permit to march outside the United Nations at a time when the federal government has declared a heightened state of threat from terrorism. Itís quite another for New York City to ban all permits for protest marches in Manhattan since the fall of 2002, a ban which only came to light two weeks ago during a federal court hearing on the U.N. march.

Some examples of the zoning of free expression:

  • The city of Seattle declared a civil emergency during World Trade Organization protests in 1999. The city took the extraordinary step of suspending peaceable assembly in a 25-block area surrounding the WTO conference.
  • When President George W. Bush was inaugurated, protesters were issued permits to demonstrate only in designated areas along the parade route.
  • During anti-globalization protests in Washington, D.C., last September, police arrested more than 400 people in Pershing Park, including tourists and nurses attending a nearby professional conference. Pedestrians and protesters alike were handcuffed and held for hours. Prosecutors ended up throwing out all of the charges, concluding there was no evidence that any law had been violated. Two lawsuits — one representing 22 plaintiffs — have now been filed against the city, according to the Washington City Paper.

I donít think that all of these cities were necessarily trying to bar unpopular opinions or minority viewpoints. I think the motivation is more pragmatic than political. Protests — like democracy — can be messy and unpredictable. Cities have an incentive to contain both costs and conduct.

Those who had hoped to march past the U.N. argued that their message would not be as powerful if they were restricted to a space some distance away. Of course, that turned out not to be the case because another First Amendment right — a free press — kicked in.

National and local broadcasts were filled with images of the protesters in New York, along with demonstrations worldwide. The same images figured prominently on the front pages of Americaís newspapers.

There are legitimate concerns about whether municipalities are infringing on the right to assembly by reflexively citing security threats, but march organizers can take some comfort in the new realities of global communication.

In a world of 24-hour news channels and the Internet, the real audience is not standing along the march route. That means government officials can contain a march, but not its message.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Anti-war protesters again lose bid to hold march near U.N.
NYCLU executive director calls federal appeals panel's ruling 'an attack on the very values our country was built on and is supposed to be defending.'  02.13.03

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