Blog: Free Speech & Loathing in New Jersey

When it comes to giving people the third degree over their First Amendment rights, Newark is second to none.

Take our ongoing soap opera over speech permits (cue soundtrack) . . .

The long and winding road

In late 2004, the ACLU-NJ filed a lawsuit against the city for violating the free speech rights of the People's Organization for Progress (POP) and New Jersey Peace Action.

We identified two constitutional problems. First, the City required anyone who wanted to distribute leaflets to get special dispensation from the police chief, who was empowered to determine whether the applicant was "of good moral character." (Ahem.)

Second, the City required anyone who wanted to hold a march to secure a $1 million insurance policy and indemnify the city from harm or damage. (You know how rowdy peace protesters can get.)

Insurance requirements like this, though patently unconstitutional, are a common government tactic for squelching unwelcome speech. How many grassroots groups can obtain $1 million worth of insurance coverage in order to march down Broad Street? Who knows how to get insurance? Who can afford it?

Naturally, we won in court and the city agreed to stop both practices.

But when ACLU-NJ Legal Director Ed Barocas and I put the agreement to the test - well, don't let me spoil the story.

Still haven't found what we're looking for

In the summer of 2006, Ed and I went to City Hall in search of a permit application. Rumor had it that the insurance requirement was back. After getting bounced from office to office, we were finally given . . .

. . . the old, inaccurate form, with the old, inaccurate instructions inaccurately telling us we needed insurance to express ourselves in the streets.

We figured this would be an easy fix. After all, the Mayor's previous campaign for election endured numerous outrageous free speech violations under the James administration, highlighted in the Academy Award-nominated documentary,Streetfight.

You can't always get what you want

As it turned out, we didn't get the snappy resolution we expected.

Ed spent weeks going back and forth with City of Newark Corporation Counsel Aney Chandy to get the permit forms changed.

To be clear, the language on these forms has real world impact. For example, we were still waiting to hear back from Newark in early September 2006, when we found out that City Hall had refused to process an application to hold a Labor Day event without proof of insurance.

The event sponsors, American Friends Service Committee and the New Jersey Immigration Policy Network, had to abandon plans to march down Broad Street. And this is just one example that we happened to hear about - who knows how many other groups changed or canceled plans because they couldn't get the insurance the city unlawfully required.

Just as we prepared to go back to court, Newark changed the form - finally. We breathed a sigh of relief knowing that the forms wouldn't scare off other citizens wanting to hold rallies or marches.

Same as it ever was

For me, one of the most frustrating parts of my ACLU job is dealing with entrenched bureaucracies. But this is far outweighed by the most gratifying part: helping secure people's fundamental democratic rights. If that ever happens in this case, I'm having a party.

Fast forward to last month's Martin Luther King Jr. Day, when POP had planned a march in Newark. Lo and behold, City Hall gives POP a permit application form, which stated...

. . . that they needed to buy $1 million worth of insurance to hold their march.

As ACLU founder Roger Baldwin said, "No fight for liberty ever stays won."

As Ed said, "You havegotto be kidding!"

The waiting is the hardest part

We contacted city again and, at their request, provided the exact language needed on the form: "Insurance is not required for free speech activities such as marches, vigils and protests. If you're engaging in free speech activities but do not have insurance, it will not affect your ability to obtain a permit."

We waited, and nudged, and waited and nudged.

Aney Chandy left her job as Corporation Counsel, with the matter unresolved.

Just like starting over

We sent an intern to City Hall to see if perhaps Aney had the form changed on her way out - a little constitutional "parting gift," we hoped.

Nope. Same old form. Same inaccurate information.

We won't get fooled again

We checked one more time late last week and found the form changed: Instead of saying that insurance is required, it says insurance may be required. Only it doesn't say in what circumstances it may be required, or that it is not required for First Amendment activities.

So someone finally changed the form, but it's still wrong and still likely to deter people from holding an event protected by the First Amendment.

After trying for more than three years for Newark to simply change two lines on a permit form, today we're heading back to court.

We don't want to spend the ACLU or Newark's resources on this. Feel my pain, as a Newark homeowner I'm paying on both ends of this needless chase. Clearly, both parties have bigger fish to fry.

But as long as this unconstitutional barrier to free speech exists, it's the ACLU's job to persist. We've exhausted all other channels - and been exhausted by them - so back to court is our last resort.

Ed and I can't fathom why Newark hasn't simply changed the form and brought personnel up to speed to avoid this litigation. It's disheartening to even have to ponder this.

Whatever the case, the whole thing reminds me of another civil liberties saying: "Eternal vigilance is the price of freedom."

So be it. We're ever vigilant.

-By Deborah Jacobs, ACLU-NJ Executive Director

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