Pandemic & Protest: Former NYCLU Head Calls On De Blasio To End Free Speech Crackdown

Issue 255.5

'Freedom of speech is a bedrock principle' that cannot be cast aside during the COVID-19 pandemic, says Norman Siegel

John Tarleton May 9, 2020

“This gathering is unlawful and you are ordered to disperse,” a white-shirted NYPD police commander droned into his bullhorn. “…Gatherings of any kind have been prohibited by the governor and the mayor.”

Standing across the way on the sidewalk at First Avenue and 16th Street about a dozen masked demonstrators held signs while keeping their distance from each other. Their protest/press conference was being held near Mount Sinai Beth Israel Hospital. They were intent on highlighting the role of Mount Sinai, the mayor and the governor in welcoming Samaritan’s Purse, an evangelical organization with a homophobic streak as wide as Central Park where it established a field hospital at the height of the COVID-19 pandemic.

From the Archive: No Cops, No Sponsors: 50 Years After Stonewall, Pride Goes Back To Its Roots.

The police had other ideas. 

The crowd was quickly dispersed. One protester was given a summons. 

On Monday, Police Commissioner Dermot Shea defended his department’s actions saying “there should not be protests taking place in the middle of a pandemic by gathering outside and putting people at risk.” He was backed up by his boss Mayor Bill de Blasio who claimed “there’s plenty of ways” for protesters to make their voices heard “without gathering in person.”

For Norman Siegel, former head of the New York Civil Liberties Union and three-time candidate for Public Advocate, this brief encounter between the NYPD and a small band of protesters has big implications as the country looks at not just months but possibly years of living with the novel coronavirus.

On Tuesday, he fired off a letter to the mayor and his top cop, urging them to rescind the no-protest edict and withdraw the summons. It was delivered in person by his clients at the Reclaim Pride Coalition. The Indypendent caught up with Siegel afterward to talk about whether we’re headed for an epidemic of free-speech restrictions, the blatant racial discrimination in how the city’s social-distancing laws are being enforced and his thoughts on why New York’s top elected officials have provided generally poor leadership throughout the pandemic. 

This interview was lightly edited for length and clarity.

Indypendent: Last Sunday, the NYPD broke up a press conference and rally organized by the Reclaim Pride Coalition in which participants were wearing masks and standing at least six feet apart. What do you make of the police action and Mayor de Blasio’s support for it?

Norman Siegel: I think that what happened on Sunday was an abuse of authority. The First Amendment rights of the people participating in the press conference were violated. I think when the police informed the people who were planning to hold a sidewalk press conference that their event was “an unlawful gathering” and then ordered them to disperse, being subjected to arrest, it was unconstitutional. And the reason why it was unconstitutional is that the First Amendment protects the right of individuals to peacefully protest in public spaces.

‘If the mayor of the largest city in America can ban peaceful protest, that could reverberate throughout the country.’

Eighty years ago, in a seminal case, the U.S. Supreme Court, in Hague v. CIO stated that the use of the streets and public places has from ancient times been part of the privileges, the immunities and rights and liberties of all of us. And I felt strongly about it because you can’t have, even during a pandemic, any government — whether it’s the federal, state or, local government — banning, suspending peaceful protest.                                                                                                                                                                      

If the mayor of the largest city in America can ban peaceful protest, that’s alarming, and it could reverberate throughout the country. Other cities could follow suit. And then, what America’s supposed to be about, allowing people in a constitutional democracy to peacefully protest, it would radically change. So we have to strongly oppose what the Mayor is doing. 

Under past court rulings, the city can regulate protest based on time, manner and place, but they can’t outright ban them, correct?

The legal requirement is that any government — fed, state or local — may enforce what are called content-neutral, reasonable time, place, and manner regulations, only where those regulations are narrowly tailored to serve a significant government interest, and must leave open ample alternative channels of communication. In addition, any permitting scheme may not delegate overly broad licensing discretion to a government official. 

The executive orders issued by the governor and the mayor prohibit any organized gathering that is non-essential such as parties, picnics, things of that nature. The First Amendment is essential. It is a bedrock principle of our constitutional democracy.

COVID-19 could be with us for a couple of years or longer so we need to speak out. Without peaceful protest and the right to free speech, the people who are powerless will not have the vehicle to bring about the kind of change that we have brought about incrementally over the last 75 years in America. We still have not gotten to the promised land, so we have to continue to struggle, to speak out, to protest. We should use those rights. If we don’t, they’ll atrophy. And then one day we’ll wake up, and we won’t have them anymore. 

Will you be filing a lawsuit in court?

What we’re trying to do now through the letter is to see whether we get a rescinding of the mayor’s interpretation. And secondly, we’re trying to create a campaign of public education in the court of public opinion to see if we can get the mayor to rescind. I would never dismiss the possibility of affirmative litigation, but what you try to do is resolve it without going to the court, because the court is time-consuming; it’s expensive. 

The protesters sought to highlight Samaritan Purse’s homophobia and how their bigotry led to workplace discrimination at their Central Park field hospital. Was it okay for the mayor and the city to ignore that when it welcomed Samaritan’s Purse to Central Park?

In my opinion, absolutely not. In addition to the homophobia displayed by Samaritan’s Purse, there’s also rampant Islamophobia. We are a city that welcomes everyone. They can have their views. They can have views that are repugnant, that are wrong-minded. But once you act out on beliefs that are discriminatory, New York City should not allow for that. I know at least two instances where people alleged that they could not be employed there because they would not agree to the statement of faith required by Samaritan’s Purse. 

Another controversy that has emerged is the disparate enforcement of the mask law and social distancing by the NYPD depending on one’s race. We’ve seen footage in recent days of police being very gentle and accommodating to mostly white people in certain public parks. And then we’ve seen footage of police violently arresting African Americans or Latinos for not wearing a mask or just for being in the wrong place at the wrong time.

Watching video of police officers abusing the rights of a person, especially when it’s a person of color, fits a very unfortunate historical pattern that people of color and poor people are treated differently than Caucasians and wealthy people. Many of us in the civil rights community have been fighting for a half-century to try to change that. There’s moments I’m optimistic and think we’ve made incremental progress. Then, watching the videos we’ve seen in the last few days, even if we’ve made incremental progress, we have a long way to go.

One thing I would say is that we should not see the police department in a monolithic way. My experience is that there are high-ranking police officers and officials who understand what equal justice under the law is. But even if it is a small percentage of 40,00 police officers acting badly, that is a lot of people who are abusing their authority, and of course we know that the discipline is usually not there or not adequate enough. So this is another struggle that it appears we must continue to fight. We should never be silent.

Taking a broader view of the situation, New York City has had the worst outcomes of any city in the United States, if not the world, with roughly 20,000 people dead and our government bureaucracies in disarray. And now we’re seeing the violation of basic First Amendment rights with no good reason. You ran for Public Advocate, the second-highest office in the city, three times in the early 2000s. Any thoughts on why New York has such sub-par political leadership?

There will be a time when COVID-19 is behind us, or at least the crisis. And that will be the time to hold people accountable. So many of our leaders have said, “Who could’ve expected this?” or “You couldn’t be prepared for this.”

They should have known a pandemic was foreseeable. The question is, what did you do to prepare for it? And when did you know or should have known that it was foreseeable? History must record that properly, especially on the federal level, so that we can learn from this, so this never happens again. 

When you have these pandemics, when you have Ebola or COVID-19, the politicians should allow the doctors and the medical experts to speak. Let them lead us. When you have the politicians trying to be the center of the focus and the attention, and the medical people are put on the side, and the politicians, for political reasons, ignore what the scientists and the medical people are saying, that’s when we get in trouble. That’s a dynamic that we need to learn for the future because we could be facing more pandemics and disease issues.

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