The New York Police Department has published a rule that could end the long-held and cherished right of protesters to proceed down the sidewalks of New York. It also imposes restrictions on two or more vehicles or bicycles “proceeding together.” A hearing is scheduled for Police Plaza at 6 PM on Wednesday, August 23 on the proposed rule, which would be put into place by “the authority vested in the Police Commissioner” rather than through local law. [Update August 21: The police department has withdrawn some of its proposed rules, and the August 23 hearing has been cancelled]

The rule has drawn the ire of civil liberties organizations. When civil rights activists led by the Rev. Martin Luther King, Jr. could not get permits for marches through the streets of the segregationist South in the 1950s and 1960s, they resorted to staying on public sidewalks, observing traffic lights at corners, and being careful not to interfere with pedestrian traffic. Even then they could run afoul of racist police forces, but at least the courts held that the protestors were within their rights.

Permits are required for marching through the streets or assembling in the public parks of New York, a right that has become increasingly restricted in the last decade or so. Whenever a protest group didn’t have time to get a permit--especially for a small demonstration--it was able to assemble and march on the sidewalk as long as it did not impede traffic.

The other provisions of the proposed rule, quietly made public on July 18, are aimed squarely at the long-running dispute between the police and Critical Mass, the bicyclists group that has been organizing group bike rides through the streets of New York on Friday nights as a combination of outing and protest. More than 260 of these bicyclists were arrested during protests at the Republican National Convention in New York in 2004.

Under the proposed rule, any “procession or race” of 20 or more vehicles, bicycles, or “herded animals” on a public street or sidewalk will require a parade permit. Moreover, two or more pedestrians, vehicles, or animals in a “procession or race” that fail to comply with traffic rules--already a violation--would be able to be charged with parading without a permit.

Clyde Haberman, in his New York Times column wrote, “Be honest. Have you never, while strolling or biking with a companion, crossed the street against a red light? It would seem that the two of you will now, technically speaking, qualify as a parade. And since you probably will not have first asked the police for a parade permit, it appears that you will--again technically--be breaking two laws. What happened here is that a molehill became a mountain.”

Norman Siegel, the civil rights attorney who represents Critical Mass, told Associated Press, “If the rules were adopted, New Yorkers will need the government’s permission to exercise their First Amendment rights, and that’s totally unacceptable.” Police Department Deputy Commissioner Paul Browne countered that opponents of the new rules are “grasping at unrealistic scenarios.”

Ann Northrop, a veteran organizer of scores of protests for the AIDS Coalition to Unleash Power (ACT UP), said, “The cops feel that they must always be in control and they live in fear of losing control and anarchy breaking out. They therefore go overboard to try to shut down everybody’s freedom of movement. They really believe in and want a police state and Giuliani and Bloomberg--and even Dinkins--have been more than happy to accommodate their approach.”

Police Commissioner Kelly, in an op-ed piece in the New York Post called “Protests & the NYPD: Keeping Speech Free and Safe,” said that the department is responding to a ruling by Justice Michael Stallman in the Critical Mass case that parade rules in the city were too vague. Kelly wrote, “None of the clarifications {in the proposed rule] in any way impinge on free speech or the message behind a march, parade, or protest. They impose no new penalties or punishments, and are in complete conformity with the conceptual framework of existing law.” He noted that the bicycle protests constituted “a real public safety problem” and had to be addressed.

“Every day,” Kelly wrote, “the department performs the great juggling act of accommodating street fairs, protests, parades and performances of one sort or another - while also safeguarding the participants and the public, and without letting the rest of the city grind to a halt.”

While mayors and police commissioners always say that they are acting to protect public safety and uphold the First Amendment, a federal lawsuit against Mayor Bloomberg brought by protesters at the Republican Convention in 2004 has revealed that his motivations may have really been political. Court documents in the case reveal, according to NY-1 News, that “an internal email a city parks official wrote back in 2004 says: ‘It is very important that we do not permit any big or political events for the period between August 23 and September 6, 2004....It's really important for us to keep track of any large events (over 1,000 people), and any rallies or events that seem sensitive or political in nature.’” The New York Sun headline said, “’Mike’s Re-Election’ Concern Stopped Park Concert.”

Bloomberg denied knowledge of the groups that were denied permits, but the Times reported, “Mr. Bloomberg's involvement in the deliberations over the protests may have been different from how he and his aides have portrayed it.”

The suit was brought by the National Council of Arab Americans and the ANSWER Coalition, which had sought to rally on the Great Lawn of Central Park. It was blocked by courts, which agreed with the “security” concerns of the police.

The city is also having to pay out millions of dollars in settlements to the protestors police wrongfully arrested or detained during the Republican Convention.

City Council Speaker Christine Quinn issued a statement on July 20 saying, “These proposals raise significant questions that we are examining carefully.” No word as of this writing what action the council will take if the police department does not address Quinn’s concerns such as whether the rule constitutes “too broad a definition of a parade” and First Amendment concerns. Manhattan Councilmember Alan Gerson told the Times, “Let us remember that part of the right to protest is the right to spontaneously protest.”

Chris Dunn, associate legal director for the New York Civil Liberties Union, told Gotham Gazette, “It is quite likely that the rule will not be adopted in its present form. The police department can adopt a different rule or no rule at all.” He stressed that while the rule doesn’t restrict the right of assembly, “a family of four that doesn’t stop at a traffic light could be arrested.”

“The last thing the police department needs is to have to negotiate every funeral procession or class trip,” Dunn said. “They have better things to do.” He noted that the permit process can be arduous and take months.

The civil liberties union is in talks with the police department to get the rule modified or dropped and with the city council in case the negotiations with the police fail. “The Police Department is trying to rewrite the rules on permits,” Dunn said. “That’s the council’s responsibility.” If neither the police nor the council addresses the First Amendment concerns, Dunn’s group is prepared to go to court over it.

Noah Brudnick, deputy director for advocacy at Transportation Alternatives, a group that advocates for “better bicycling, walking, and public transit, and fewer cars,” in a city notably hostile to them, said the rule would “deter New Yorkers from walking and riding bikes” because it would make it “much more difficult for recreational clubs to organize runs, jogs and bike rides.” He also said the potential restrictions on walking tours and sightseeing “would hurt the economy of the city.”

Brudnick’s group, too, is working with the council on alternatives to the new police rule and mobilizing for the public hearing at the Police Department on August 23.

City Prevails in Suit Challenging Right to Inspect Bags on Subways

The Second Circuit Court of Appeals, a federal court, ruled unanimously on August 25 that the city had the right to randomly inspect bags being carried into the subways. Judge Chester Straub wrote, “We will not—and may not—second-guess the minutiae” of the decisions made by city counter-terrorism experts and elected officials who have “undertaken the delicate and esoteric task of deciding how best to marshal their available resources.” City Corporation Counsel said that the court agreed that the inspection program “balanced subway security and civil liberties.” Police Commissioner Kelly said, “Common sense prevailed.”

The inspections were begun last July after the London subway system was attacked by terrorists with bombs, killing more than 50 people. While the police have retained the right to inspect bags, the inspections have been much less evident in recent months. People trying to enter the subway retained the right to exit the station without submitting to an inspection, but they could not board trains.

The New York Civil Liberties Union had argued that the “unprecedented search program is not sufficiently effective to justify subjecting the millions of daily subway riders to suspicionless police searches. The NYCLU therefore has asked the courts to halt the program as violation of the Fourth Amendment to the United States Constitution.”

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.