The constitutional right to protest has been banned in New York City by order of Mayor de Blasio.
At least twice in the past 11 days, protesters have been told to disperse by police officers and warned they are subject to arrest if they do not. In one instance, two people were issued summonses, and in another, at least half a dozen were arrested and ticketed.
The reason for banning the right “peaceably to assemble, and to petition the government for a redress of grievances,” as the First Amendment puts it, is to thwart the spread of the coronavirus.
At a May 3 protest in Manhattan against Samaritan’s Purse, a Christian organization that had set up a field hospital to treat COVID-19 patients in Central Park, a police official ordered the attendees to disperse. The protesters, who mostly wore masks and stood apart, oppose the group’s opposition to gay marriage.
“Warning: These gatherings are prohibited,” the uniformed official said into a loudspeaker, reading from a script. “This is the New York City Police Department. Gatherings of any kind have been prohibited by the governor and by the mayor. This gathering is unlawful and you are ordered to disperse. If you fail to disperse immediately, you are subject to arrest.”
Two protesters were issued summonses.
Asked if it is now official policy that protests are illegal, the Police Department’s press office said, “Under no circumstance are large group gatherings acceptable — they put our NYPD officers, frontline healthcare workers and others at risk. That said, social distancing is about raising awareness for the common good rather than punishing the few.”
The NYPD spokesperson who responded, Det. Sophia Mason, also referred the Chronicle to comments made by Mayor de Blasio and Police Commissioner Dermot Shea during a May 4 press event.
“You know you’re talking about some of the values that we hold in the highest regard in this country and certainly this city, the right of people to gather and the right of free speech and the right of protest,” Shea said in response to a question at the event, adding that new rules have been issued in response to the pandemic. “So while we greatly, greatly respect the right of people to protest, there should not be protests taking place in the middle of a pandemic by gathering outside and putting people at risk.”
“Yeah,” de Blasio said. “And look ... people who want to make their voices heard, there’s plenty of ways to do it without gathering in person.”
Gov. Cuomo’s press office did not respond to requests for comment.
The suspension of a constitutional right, even temporarily, raises concerns among advocates for civil liberties.
“The issue is so fundamental and important in my opinion,” attorney Norman Siegel, who headed the New York Civil Liberties Union from 1985 to 2000 and is representing the two protesters charged in Manhattan, told the Chronicle. “The consequence is that New Yorkers are allowed and encouraged to go out in the street with masks and stay at least six feet apart, and we’ve observed that. But if they are adhering to those requirements, and they have a sign or they say something about an issue of public concern, that speech, that sign, will make the speaker or the person holding the sign subject to arrest on the specious basis that speech is a public health risk.”
In his opinion, Siegel said, the ban on demonstrations is unconstitutional.
“The problem and the flaw with what the mayor is doing is he is banning peaceful protest but he is not creating reasonable alternatives that would protect public health with fewer restrictions on free speech,” he said.
Siegel added that when the mayor of the largest city in the United States bans protests, it raises the question of whether other cities around the country might take a cue and do the same.
Marc DeGirolami, the Cary Fields Professor of Law at St. John’s University and co-director of its Center for Law and Religion, said that over time, the freedoms of speech, including protest, and religion, though not absolute, have come to be the most powerful among those cited in the First Amendment.
“The lay of the land, especially when you’re dealing with public spaces, like parks or city streets and so on, is that the government has a heavy burden to justify impositions on the freedom of speech,” DeGirolami said. “These are historically the kinds of places that are most protected when it comes to people being able to exercise their rights.”
In court, he said, the government has to show both that it has a compelling interest in restricting a right such as the freedom of speech, and that it is achieving its objective by the least restrictive means.
And, he continued, if protest were not the issue and the police were just enforcing social distancing rules and the wearing of masks, that would be fine.
“But the actual dispersal requirement, that you cannot gather even with proper social distancing to protest” is problematic, he said. “Once there’s a sense that what the government is doing is actually targeting enforcement of these dispersal orders, for whatever reason, to protesters, then I think the government has a problem.”
Siegel, in addition to representing the two protesters charged at the rally against Samaritan’s Purse, wrote both de Blasio and Cuomo on May 5 calling upon them to rescind any policies or orders banning or suspending First Amendment activities.
“Although you, as government officials, have a strong interest in protecting the health and safety of New Yorkers, especially during the COVID-19 pandemic, you cannot constitutionally nor legally ban/suspend protected fundamental First Amendment rights of all New Yorkers,” he said in his letter.
This article initially misstated which civil liberties union Norman Siegel used to lead. It was the NYCLU. We regret the error.