July 14, 2008

NEWARK, N.J. - After more than four years of contending with the city of Newark, the American Civil Liberties Union of New Jersey announced the resolution of one free-speech battle only to have to confront a new one.

"The city is putting up new barriers to free speech that will silence poor people," said People's Organization for Progress president Larry Hamm, whose organization engages in free speech activity in Newark. "Free speech should be just that -- free -- and available to all people, not just those who can afford to pay for it."

Last week, an ACLU-NJ lawsuit on behalf of itself, New Jersey Peace Action and People's Organization for Progress against the city for requiring people to buy million-dollar insurance policies to engage in their constitutionally protected free speech rights was resolved. Newark, which the New Jersey Superior Court in Essex County had told could not ask for "speech insurance," effectively required it anyway in violation of the court's order, and the city paid the ACLU-NJ's legal fees for having to go back to court to resolve the matter.

The ACLU-NJ was dismayed to learn that just as this matter was coming to a close, on May 21 the Newark City Council passed an ordinance that again violates free speech rights -- this time by requiring a group of 15 people to get a permit to gather and forcing them to pay at least 20 percent of the costs of their activities. The new ordinance requires any group of 15 people on a city street, sidewalk or park to obtain a permit from the city or risk a citation. Before this ordinance was passed, the city only required a permit if the activity forced a street or sidewalk to close. The ACLU-NJ sent a letter to the city today to challenge the new ordinance.

"If you want to have a family picnic in Branch Brook Park, or take your co-workers to lunch, or celebrate with your baseball team, or sing Christmas carols with your neighbors -- if there are 15 people or more, you'll have to apply for a permit," said ACLU-NJ Executive Director Deborah Jacobs. "This ordinance doesn't just hurt free speech -- it disrupts the community."

The ordinance also requires people engaging in free speech activities to pay for at least 20 percent of all incidental costs, including police costs. Therefore, poorer residents, grassroots organizations and other groups who can't afford to pay for their speech activities will effectively be barred from engaging in constitutionally protected expression. The ACLU-NJ's letter to the city points out that the New Jersey Supreme Court has made it clear that there should be no monetary impediments to the right of people to engage in free speech.

In its letter, the ACLU-NJ requested a meeting with the city's attorney and sought assurances that the new ordinance will be rescinded or amended to adhere to principles of free speech. Unless the city reverses this policy promptly, more legal action is likely.

"As soon as Newark agreed to fix its original anti-free speech policy, another one popped up in its place," said ACLU-NJ cooperating attorney Bennet Zurofsky of the Newark law firm Reitman Parsonnet. "We have requested a meeting with Newark officials to settle this game of whack-a-mole once and for all - but we are prepared to move forward with legal action again if that's what it takes."

The city had vowed in 2004 not to impose the insurance requirement in light of the Essex County judge's decision ruling it illegal. The court found the city had never even authorized the requirement for insurance; Newark officials had no authority to ask for it. In addition, the New Jersey Supreme Court, in 2000, ruled that insurance requirements violated free speech protections. Nevertheless, city officials refused to take the insurance requirement off the permit applications, and organizations continued to have their permit applications delayed or denied for their failure to buy the million-dollar insurance policy.

The original case was captioned People's Organization for Progress, et al. v. City of Newark and filed in New Jersey Superior Court in Essex County in 2004.

The ACLU-NJ's July 14 demand letter to Newark can be found at /index.php/download_file/view/84/668/

A musical blog about the ongoing problem, written by ACLU-NJ Executive Director Deborah Jacobs, can be found at /theissues/freespeechexpression/blogfreespeechloathinginne/