October 07, 2004

Newark – The ACLU-NJ successfully blocked enforcement of two Newark policies affecting free speech rights in a ruling issued today by Judge Kenneth Levy of the Superior Court of New Jersey, Essex County. One of the policies required that protestors buy a $1,000,000 insurance policy in order to engage in protests, marches or vigils. The other policy restricted the right of individuals to distribute leaflets on public sidewalks and streets.

“We hope this serves as a victory for all small and grassroots organizations that seek to engage in their constitutional right to speak. Free speech should be free, and should not be only for those wealthy enough to afford it,” stated Madelyn Hoffman, President of New Jersey Peace Action, a plaintiff in the suit, along with the People’s Organization for Progress and the ACLU-NJ itself.

The ACLU-NJ argued that Newark’s restrictions violate the right to freedom of speech under the United States and New Jersey Constitutions.

Judge Levy held that the City’s insurance and hold harmless requirements for street marches and demonstrations were not properly adopted and were therefore likely to be ruled invalid. The Newark City Council had never officially adopted such requirements, and Judge Levy explained that an executive officer cannot simply impose such requirements without the Council’s authorization to do so. Judge Levy also noted that, even if it were properly adopted, there was no evidence that the insurance requirement was narrowly tailored to meet the City’s interests, as is required under constitutional analysis.

Until recently, Newark recognized that requiring individuals or grass-roots organizations to obtain a million-dollar insurance policy as a prerequisite for holding a march, rally, or vigil on a public street violated free speech protections. As such, free speech activities were exempt from the City’s insurance requirement. However, since at least April, Newark reinstituted their insurance requirement for free speech activities and, in addition, requires individuals to indemnify the City for any harm that may occur to them during the march. As such, individuals and organizations that could not afford the cost of insurance were to be precluded from exercising their free speech rights.

Additionally, in response to the ACLU-NJ’s lawsuit, the City has now agreed not to enforce its leafleting ordinance. Newark’s leafleting ordinance (Ordinance 8:6-1) states not only that persons handing out notices or leaflets on public sidewalks or streets without a permit can be arrested, but further requires that, in order to obtain a permit, the Chief of Police must be “satisfied that the person is of good moral character,” the applicant must be fingerprinted, and the applicant must submit two recent photographs of himself “of a size determined by the Chief of Police.” The ACLU-NJ argued that permits cannot be required for free speech activities and that the Chief of Police cannot be granted such wide discretion in deciding who may obtain a permit. Perhaps recognizing its unconstitutionality, the City of Newark decided not to defend the ordinance in court.

“Courts have long held that the right to march and leaflet in the public streets are among the most basic free speech protections,” stated Bennet Zurofsky of Reitman Parsonnet, a volunteer attorney representing the plaintiffs on behalf of the ACLU-NJ. He added, “We are pleased that our clients have been able to vindicate those rights in the City of Newark.”

The lawsuit is entitled People's Organization for Progress, et al. v. City of Newark, et al. The case was filed in the Superior Court of New Jersey in Newark. Newark was represented by Assistant Corporate Counsel Catherine Bruzzese.