Demonstrators beware: you won't be seen or heard
According to Alex Vitale, an associate professor of sociology at Brooklyn College who has studied police tactics at demonstrations, when cities require permits for rallies and marches, there are two principles they should follow. First, he said, a determination of a permit application needs to be done in a timely manner. “Groups want to organize months in advance, [and] they need to know whether their permits have been granted first.” Vitale recommended that cities begin their permitting process at least six months before the convention. Second, the permit process “should not be wholly in the hands of the police, but should be handled by a more independent body, and there should be some process of appeal,” he added.
What about D.C.?
As an example, Verheyden-Hilliard pointed to a law that was passed in Washington, D.C. called the First Amendment and Police Standards Act of 2004, which, among other things, restricts the use of certain police tactics such as pepper spray and “hogtying,” and declares that “it shall not be an offense to assemble or parade on a District street, sidewalk, or other public way, in a District park, without having provided notice or obtained an approved assembly plan.”
After several other legal challenges, Verheyden-Hilliard said, Washington D.C. has agreed to allow demonstrators to gather in several areas where the city had previously denied access for security reasons. “People are now allowed to protest on the sidewalk in front of the White House and (across the street) in Lafayette Park. People can protest on the Capitol steps.”
“No one can dispute that D.C. is the site of more protests…than any other city,” Verheyden-Hilliard went on. “We passed this law and the world is not coming to an end here, so if we can do it, other cities can do something similar,” she went on. “That would be a significant step forward toward embracing free speech rights.”
Vitale also criticized another policy that is currently in place in both Charlotte and Tampa: giving first priority to Convention activity for the use of all parks and public spaces in the cities. He suggested that cities either require the conventions to go through the same permitting process as demonstrators, or reserve a significant amount of public space for demonstrations in advance. “How can a city possibly claim to have a fair permitting process when they give the first right of all public spaces to one group?” he said.
Several civil liberties advocates insisted that permitted parade routes, like demonstration zones, should be within sight and sound of the event. According to Anne O’Berry, the southern regional vice president of the National Lawyers Guild, the ability of a city to allow rallies and marches within sight and sound of the convention should be taken into consideration when the convention city is chosen. “If you are not able to show clearly how you are going to have people gathering and marching within sight and sound of the convention, then you shouldn’t be allowed to host it in the first place,” she said.
Finally, Verheyden-Hilliard said, it would be better to pass legislation that clarifies the specifc methods available to law enforcement officials when policing demonstrations, instead of the blanket adoption of spatial restrictions that put portions of a city altogether out of reach. (See sidebar titled “What about D.C.?”.)
Encouraging free speech is not our job
Municipal officials in both Charlotte and Tampa, however, were generally not willing to entertain those suggestions, nor consider how their policies would be different if their primary goal was to encourage free speech.
“It’s important that we plan for the worst,” said James Shimberg, the City Attorney in Tampa.
In Charlotte, Senior Deputy City Attorney Robert Hagemann pointed out that, in some ways, cities are constrained both by the demands of the convention organizers and by federal law enforcement activity. For example, the Democratic National Convention Committee’s contract with Charlotte requires that the city use spatial tactics to restrict speech (the contract is explicit about the creation of a “demonstration zone,” for example, implying that demonstrators are not to be allowed more unfettered access). The Democratic National Convention Committee did not respond to repeated requests for comment as to why that provision was put into the contract.
When asked if it is Charlotte’s policy that the free speech zone and parade route must be within sight and sound of the convention site, Hagemann said that his office is developing policy under the belief that the city is not constitutionally required to allow demonstrators that close. When asked whether, regardless of its constitutionality, he believed it would be good policy to permit demonstrators within sight and sound of the convention, Hagemann did not respond directly, saying only, “Listen, no matter what we do, some people aren’t going to think it’s good enough. We can’t please everyone.”
Shimberg said that while Tampa is trying to place the free speech zone as close to the convention site as possible, the city will be limited by the security perimeter to be determined by the Secret Service. When he was asked whether he had suggested to the Secret Service that some demonstrators might be allowed inside the security perimeter if they were screened, as suggested by Yohnka of the ACLU, or had otherwise negotiated with the Secret Service regarding the perimeter, he said, “They kind of make it clear that they are making the rules.”
The Secret Service declined to comment for this article.
In regards to the security policies under municipal control, local officials in both cities said that, in general, they defer to their police departments.
“I’m not a security expert,” said Mike Suarez, a Tampa City Councilor who is planning to vote for the proposed ordinance limiting what items people can carry in the city. “Police officers are trained to do certain things. They’re not a vigilante force. So when they tell me they want to ban certain things, I find it difficult to second-guess them.”
Suarez said that the proposed municipal ordinance and other security policy for the convention are based on incidents of violence and vandalism that had occurred at other conventions.
According to Verheyden-Hilliard, “there is this huge mythology that says all these terrible things have happened. I’ve seen intelligence reports saying that protesters were slashing tires, or throwing bags of urine, or throwing ball bearings under horses. When you actually claw away at the claims, frequently those things have not actually happened, or, if they have, they’ve been extremely minor incidents.”