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City of the banned? Protest prohibition under discussion in Burlington

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By Shay Totten | Vermont Guardian

Posted May 17, 2007

This article first appeared on January 6, 2006, and the Guardian broke the news on our website earlier in the week. After a public outcry, the ordinance proposal was shelved by city officials.

BURLINGTON — A proposed ordinance that would ban protests and public assemblies in front of City Hall and the main office of Vermont’s lone congressman threatens to stifle Burlington’s reputation as a hotbed of protest politics.

Marches against war and in favor of gay and lesbian rights have been among those that have helped to shape public debate and have brought thousands of people to the Queen City.

The proposed ordinance would prohibit protests on about three-quarters of the city’s four-block pedestrian mall — the Church Street Marketplace — and could create other barriers to obtaining a permit to protest, parade, or otherwise spontaneously assemble in Burlington without permission from city officials.

The ordinance states that the section of Church Street in front of City Hall, and in front of Independent Congressman Bernie Sanders’ office, are only to be used as “performance sites.” It bans assemblies of 50 or more people during weekdays on the section of Church Street that sports the entrance to the city’s downtown mall, the Burlington Town Center. Public assemblies would be banned entirely on Saturdays and Sundays on this block.
Sanders, who is running for U.S. Senate, won his first electoral victory in Burlington when he was elected mayor in 1981 and often urged residents to take their protests to the doors of their elected officials.

Bistro Sauce

Backers of the measure say the city needs to have a more streamlined way of coordinating multiple public events, marches, and demonstrations in public streets and sidewalks, especially in congested areas like the Church Street Marketplace, and Waterfront and Battery parks.

“This is an attempt to create a more seamless system to balance the competing needs and address the impacts on the city and do that in a constitutional fashion,” said Gene Bergman, an assistant city attorney who drafted the measure in consultation with the city’s police, fire, public works, parks and recreation departments, and the Church Street Marketplace Commission, which governs the city’s outdoor pedestrian mall.

Additionally, the intent of the ordinance, Bergman said, is to remain “content neutral” in what the city regulates in order to conform to constitutional protections.

According to Deputy Chief Walter Decker, of the Burlington Police Department, the revised ordinance gives his department more concrete reasons to deny a permit for a parade, protest, or assembly, rather than leaving it to what could be considered “arbitrary and capricious” and therefore unconstitutional decisions. The ordinance does spell out various reasons for why a permit can be denied, including the lack of police, fire, or other safety personnel.

“This has really been in the works for several years between various city departments,” said Decker. “We feel this proposal provides enough flexibility for us to allow people to use the streets, have public assemblies, and gather in other recognized and legal ways that people in this city have always enjoyed.”

According to Chris Meehan, director of the Burlington-based Peace & Justice Center, which has sponsored dozens of major marches and demonstrations in the city, “I’m very surprised that a city council as progressive as we have in Burlington would approve of this.

“I think the big concern is that the intention may be that they are not intending to curb our right to free speech, but that could be the outcome,” Meehan said. “And I have a problem with people who are doing peaceful demonstrations being relegated to parts of the city where there isn’t as much traffic. That’s not how you get your message heard.”

Other cities have attempted to restrict the rights of people to assemble and protest, and largely continue the practice under the guise of “free speech zones,” or to protect public safety and ensure orderly flow of traffic and pedestrians.

On Dec. 22, 2005, a federal judge in Maine gutted an Augusta ordinance similar to Burlington’s, deeming much of it unconstitutional, including key provisions related to charging service fees to provide police, fire, and other city auxiliary personnel, as well as forcing organizers to file up to 30 days in advance for permits and only allowing for an exception if “good cause” is shown. The judge said giving unelected officials that much control was too “arbitrary.”

Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union (ACLU), said the ordinance contains many troubling provisions. Most worrisome to him is that it mirrors a national trend to restrict protests and dissent in public places.

“It’s really troublesome that Burlington is going down this road. There seems to be a trend nationally that government feels protests and dissent are inconvenient. Particularly now, we need people to speak out on issues,” said Gilbert. “People should be able to exercise their First Amendment rights — especially in front of City Hall. The ordinance seems to say that only ‘performances’ will be allowed in front of City Hall. Does the city really mean to outlaw protests but allow performances at the seat of local government? Local governments should not be copying the federal government — essentially herding people into protest ‘pens’ at out-of-the-way places.

“A very high standard must be met to justify restrictions as severe as these,” added Gilbert. “The government must show that there are substantial and real health and safety risks posed by protests and demonstrations. I don’t think that’s been shown.”

The city’s attorney disagrees.

“I believe this meets reasonable time, place, and manner law set out under the constitution,” said Bergman, who also is chairman of the Peace & Justice Center’s board of directors. “The ordinance allows for ample means of alternative locations, and it reasonably regulates significant governmental interests like balancing pedestrian and vehicular safety and commerce in commercial areas.”

For example, Bergman said, protests and vigils held on the Church Street side of City Hall could reasonably be moved to City Hall Park.

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Putting practice to paper

Putting more power into the hands of city departments to potentially deny marches and demonstrations, while troublesome to some, is not without precedent in the Queen City, said Meehan.

“In some ways this is not a surprise,” she said. “It’s been increasingly difficult working with the police in Burlington in the time that I’ve been here. In fact, the last time I tried to get a permit for something, we had to move where we wanted to march to a much less visible spot because there was something going on in another part of the city.”

Meehan said the proposal’s requirement that any parade or assembly on a city street or sidewalk of more than 100 people must apply for a permit up to 60 days in advance of the event was “ridiculous.”

The current city ordinance governing the use of streets and sidewalks only requires a 48-hour notice be given to the police department.

For events of less than 100 people, organizers would need to apply seven days in advance, according to the proposed ordinance. There are provisions to obtain permits on shorter notice if the city department granting the permit “finds that the proposed activity is for the purpose of spontaneous communication of topical ideas that could not have been foreseen in advance of required application period.”

“Two months’ notice is just way too much time. There are many times we don’t have a plan for when we’re going to hold a demonstration,” said Meehan, adding that the ability to obtain permits on shorter notice was not a comfort.

“It’s still their choice and at any time they could say no to a really important demonstration,” said Meehan.

The new ordinance would also, for the first time, charge an administrative fee of $50 for each permit application. In addition, the city’s various departments would be able to continue to charge fees for providing police officers, fire safety, or emergency medical technicians or cleanup after the event. Most departments already charge events various fees to use public spaces, or the cost to provide police officers to direct traffic.

Meehan said she is concerned that the departments are being given too much power to charge unlimited fees and make arbitrary decisions on how much an event will “cost” the city.

Gilbert, too, finds sections open to potential abuse. “Many of the restrictions are arbitrary,” he said. “The setting of fees for police protection, for example, is to be done by the police department. If you’re told 25 cops are needed to police your protest, and that’ll cost you several thousand dollars, that has a chilling effect on your First Amendment rights.”

Bergman points out that any applicant could appeal a decision to deny a permit to Chittenden Superior Court, and that the individual department fees are set as part of the city’s annual budget process.

Those fees, however, are not spelled out in the ordinance.

Decker said the ordinance gives his department the ability to charge fees to hire the off duty officers needed to provide traffic control, not to mention that the city could possibly recoup any other lost revenue because streets are closed. This would include the lost revenue from parking meters.

Decker said his department billed more than $100,000 in the most recent fiscal year beyond their budget, much of which was to staff various public assemblies, parades, and events.

Decker said his office often gets requests from people and groups from around the state to hold events in Burlington, either to raise money or awareness or to protest policies.

The problem, Decker noted, is that the city can’t always accommodate several events at once. And, that means some people will be turned down, or asked to revise their plans.

“If we were just to open up our streets to anyone at anytime, how would I budget for that?” Decker said.

Up in arms

The proposal, which has generated harsh criticism from around the country, was originally reviewed at the Dec. 19 city council meeting. At that meeting, the ordinance change was approved by a voice vote to be sent to the council’s three-member ordinance committee.

On Dec. 30, one-time GOP mayoral hopeful Kevin Ryan issued an e-mail alert to hundreds of people around the country asking them to help him stop the council from adopting the changes.

Civil libertarians nationwide took Ryan up on his offer and began e-mailing public officials in Burlington, as well as the Vermont Guardian. This e-mail campaign forced some city councilors to take another look at the ordinance change and reread its contents.

Several city councilors are now raising questions, including Tim Ashe, a Progressive who is a member of the ordinance committee.

“The day the U.S. starts bombing Iran, do we really want the [police department] to break up a candlelight vigil on Church Street for lack of a permit?” asked Ashe. “Burlington has a rich history of political activism, and we shouldn’t bureaucratize that away. When this reaches our agenda, I will want to know how this compares to existing city rules around permitting rallies and demonstrations, and why it is necessary to open this can of worms at this point in time.”

Bergman said several departments already have internal policies and directives that govern how they handle permit applications.

The chairman of the ordinance committee, Democrat Andy Montroll, said the panel hasn’t scheduled time to vet the proposal. The committee has other items to attend to before it will review this proposal, he said, and he isn’t sure when the three-member panel would examine it.

“But for something that hasn’t been discussed yet, I’m already getting a good heads up that this will be controversial,” Montroll said. “We’ll definitely take a close look at this and want to hear from all sides. My gut reaction to this is that it seems like it’s going to be more restrictive than what it needs to be, but that’s mostly a reaction to what I’m hearing from people who are concerned by it.”

Ron Redmond, director of the Church Street Marketplace Commission, said early concerns about the limits being placed on public speech and assembly are welcome, but might not be warranted.

“I think it’s too early for people to panic,” Redmond said. “I think we have done a good job of providing a time, place, and manner in this ordinance; there is a rhyme and reason to why it’s written like this.”

Board members of the Church Street Marketplace Commission, who are appointed by the city council, haven’t seen the most recent ordinance proposal, Redmond said.

The commission will initiate a public process to talk to various stakeholders, including businesses, cart vendors, nonprofit organizations that table on the street, as well as street performers and residents.

“I think it’s important to remember there are a lot of stakeholders and users of the marketplace,” Redmond said. “And, while each of us may feel entitled to the street, a lot of people want to use it.”

As a result of its popularity as a shopping and eating destination, Redmond said, the street can become crowded and difficult to accommodate parades, vigils, tabling, and other public interests.

“The marketplace is a really crowded place and we are trying to meet everyone’s needs,” said Redmond. “We’re trying to find a way so that everyone can have access to the right-of-way in a safe and easy way.”

Burlington joins the crowd

In 2004 during both the Democratic and Republican national conventions, the respective host cities of Boston and New York set up contained areas that ostensibly kept protesters from mingling with those they were protesting. The ACLU and other groups challenged these rules in court.

In the aftermath of the Republican convention, the New York City chapter of the ACLU filed three federal lawsuits against the NYPD, challenging the mass arrests and detention tactics as well as the fingerprinting of those arrested at the convention. The NYPD has since announced that it has destroyed all fingerprints. The lawsuits are pending in court.

The NYCLU also released a 64-page report in August that recommended the establishment of an independent city agency to oversee the planning and management of large demonstrations. The report says the most troubling aspect of the police department’s actions during the convention was its resort to mass arrest tactics that resulted in large numbers of innocent people being swept into police custody.

“The historical account provided … is particularly important since the NYPD has defended all of its actions during the convention and has insisted that it made no mistakes,” said Donna Lieberman, executive director of the NYCLU. “The performance of police was decidedly a mixed one. While hundreds of thousands of people were able to make their voices heard, the right to protest was severely undermined by the mass arrests of hundreds of peaceful demonstrators and bystanders, the pervasive surveillance of lawful demonstrators, and the illegal fingerprinting and prolonged detention of nearly 1,500 people charged with mostly minor offenses. This compromised their constitutional right to protest.”

In Boston, protesters successfully argued in court for a parade route that passed the site of the convention, but did not win a separate appeal to have a so-called “free speech zone” moved closer to the convention center. The case was filed on behalf of several protest groups who claimed that the cramped quarters, fencing, razor wire, and inadequate egress in the demonstration area not only fell short of what the city had promised as an assembly and free-speech area, but also created what amounted to a cage.

In Flemington, NJ, which has a similar ordinance to the one being contemplated in Burlington, a man was denied a permit to hold a peace vigil on Aug. 17, 2005. The man, Bob Flisser, said he anticipated only 12 people at the event.

When Flisser proceeded with the vigil, which occurred on a sidewalk plaza on Main Street, he was arrested and charged with violating the ordinance.

“We shouldn’t need the government’s permission every time we want to express ourselves in public,” Flisser told the ACLU, “especially when our activities don’t block traffic or cause any other disruptions.”

Flemington’s so-called parade ordinance threatens free speech because it covers much more activity than is constitutionally permissible and makes no accommodation for spontaneous speech, the ACLU said. It covers “any parade, march, ceremony, show, exhibition, pageant or procession of any kind, or any similar display in or upon any street, park or other public place.”

To be eligible for a permit, an application must be submitted at least six days before an event. The chief of police can waive the requirement apparently based on his discretion, as the ordinance provides no guidelines for deciding whether to grant or not grant the exemption, the ACLU said.

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