ACLU-NJ Circus Suit Makes Free Speech the Elephant in Room

February 2, 2011

NEWARK, N.J. — The American Civil Liberties Union of New Jersey’s (ACLU-NJ) has filed suit today against the City of Newark for its unconstitutional arrest of an animal welfare advocate while he was exercising his First Amendment right to protest on a public sidewalk outside of the Prudential Center.

The complaint, filed in Superior Court in Essex County, charges Newark Police violated Nicholas Botti’s rights when they refused to allow him to stand on a public sidewalk with a sign depicting the prodding of an elephant next to the words, “This is Ringling Baby Elephant Training.” Botti, a resident of Atlantic Highlands was arrested on March 7, 2010 when the Ringling Bros. and Barnum & Bailey Circus was in town.

“Botti was standing on a public sidewalk, exercising his Constitutionally-protected free speech,” said Bennet Zurofsky, who is representing Botti on behalf of the ACLU-NJ. “He was not blocking the sidewalk, nor was he blocking pedestrian traffic. If he can get arrested for standing on a sidewalk with a sign, what’s to stop Newark Police from arresting anyone else who is doing the same?”

Botti and seven other animal welfare advocates distributed leaflets opposing the treatment of animals by Ringling Bros. and Barnum & Bailey Circus. When they arrived at the center, police corralled them into a designated “protest zone” far from the arena, in an area that saw significantly less pedestrian traffic than the front of the center.

When Botti asked a Newark Police lieutenant what law required the protesters to stand in a protest zone, the officer replied, “My law.”

Although the City of Newark does not have specific written guidelines for political activities in front of stadiums, arenas, or other public venues, it does have an ordinance requiring a permit to hold demonstrations with more than 50 people – a number much greater than the animal welfare activists at the Prudential Center the day of Botti’s arrest.

Botti and another activist moved from the designated zone to the intersection of Mulberry Street and Edison Place diagonally across the street from the arena, where their signs could be seen more readily. When Botti refused to return to the designated zone, police arrested him on charges of obstructing the sidewalk and failing to move when ordered by police, even though neither he nor his sign were blocking traffic.

“Standing on a public sidewalk holding up a sign, irrespective of content, is basic free speech,” said Botti. “The fact that the police arrested me for blocking a sidewalk and didn’t arrest, or even address, the street vendor standing right beside me on the sidewalk shows how unfair it is to single out just the people who speak up as targets.”

The ACLU-NJ has challenged the City of Newark a number of times over impediments to free speech. In 2004, it successfully challenged a city requirement for all groups to get the police chief’s permission before distributing information and to secure a $1 million insurance policy before holding a march. In 2008, the city passed an ordinance ensuring that basic free speech activities would not be subject to the insurance requirement.

The complaint is captioned Nicholas Botti v. City of Newark.

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