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DEMONSTRATION GUIDELINES [] FOR NEW YORK CITY [] DEFENSE AND EDUCATION FUND [] of the [] NEW YORK CIVIL LIBERTIES UNION [] 156 FIFTH AVENUE [] NEW YORK, N. Y. 10010 [] I. [] Demonstration on Public Streets [] A. Marches. There are basic rules of thumb for demonstrations, based upon case law, which are fairly easy to follow. It is now clear that a non-violent group of people marching on a public street to make a political point, may not be penalized if they stay on the sidewalk. No permit is required. A sidewalk march is not a parade. This means that you can march as far as you like, and string out the line of march as much as necessary. Noise, such as singing and chanting, the stopping of Traffic on cross streets, even inconvenience to pedestrians, do not make such a march into a breach of the peace (disorderly conduct). Sections of the disorderly conduct statute, such as that penalizing congregating together and failing to move on when ordered to do so, (PL 240.20 (6)), may seem to cover the case, but the Supreme Court has repeatedly held that such a march on the sidewalk of a public street is protected. Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. Chicago, 22 L.Ed. 2d 134 (1969). [] In the street (on the roadway), a march is much harder to defend legally. It may violate traffic regulations, as well as the parade ordinance (N.Y.C. Admin. Code 435-9.0). If such a march is peaceful, and a parade permit has been refused, it is probably not a disorderly conduct (Gregory v. Chicago, supra.) Operationally however, it is an almost certain arrest situation, because of the snarled traffic. For First Amendment purposes, in short, try to stay out of the roadway or get a parade permit from the Police Department. [] It is important to appoint marshals, to try to keep the march within prescribed limits, e.g. on the sidewalk. If possible, some persons, especially photographers or lawyers, should be non-participating observers, to testify, if necessary, that the marchers were peaceful. The status of such observers is protected by the First Amendment and police regulations. [] It has been held that the mere fact that hecklers or others opposed to the demonstrators' position are present is not enough to justify the police in arresting a speaker or demonstrators. Cox. v. Louisiana, supra; Rockwell v. Morris. 211 N.Y.S. 2d 25 (I Dept. 1961) aff. 10 N.Y. 2d 721 (1961). [] B. Barricades. The police frequently erect barricades which prevent marchers from getting in front of a desired goal, e.g. the United Nations. Limitations of demonstrations may be justified to keep traffic flowing, but not to keep the demonstrators from reaching their audience. Demonstration organizers should try to negotiate with the police over this. But note that acquittal of a disorderly conduct charge is possible for violation of unreasonable restrictions. People v. Solomonow, 291 N.Y.S. 2d 145 (Crim. Ct. 1968). [] C. Speeches. There is a city ordinance still on the books (Ad. Code 435-7) requiring a permit for speeches. It has been held unconstitutional. Kunz v. New York, 340 U.S. 290 (1951). You do not need a permit to speak even if a crowd gathers and if anyone asks whether you have a permit, say that none is required. Operationally, it is good, however, to keep a space on the sidewalk open for pedestrians. Although this is probably subject to constitutional attack, under present law you should have an American flag while speaking (Ad. Code 435-8), but you may have other flags as well. [] D. Picketing. It has become traditional to picket in a moving circle, carrying signs. Policemen frequently believe that demonstrators must keep moving, but this is not the law (see speeches). A person who refuses to move on after being ordered by a policeman to do so may not be constitutionally arrested in the absence of some justification for the order. Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965). No permit is required to picket, and statutes provide for none. There is an informal rule that signs should not be on wooden sticks to prevent violence, but it is not a law. [] E. Leafleting. All political leafleting on public streets is absolutely protected under the First Amendment. It is not littering or a violation of the Public Health Code, and Police Department regulations so recognize. [] F. Sale of literature and buttons. When these activities are carried on as part of a demonstration and not for commercial purposes, they may not be penalized as peddling. People v. Krebs, 282 N.Y.S. 2d 996 (Crim. Ct. 1967): People v. Hennacy, 308 N.Y. 1039 (1955). [] G. Use of tables, etc. Incidental use of tables to distribute political literature is protected under the First Amendment. It has been held not to violate the Administrative Code provisions penalizing obstructing the sidewalk (Ad. Code § 692h-1.0). People v. Katz, 21 N.Y. 2d 132 (1967). [] H. Sound equipment. To use sound equipment, you need a permit, and the provisions are probably constitutional (Ad. Code 435-6.0). A permit may not be denied arbitrarily. [] II. [] Demonstrations in Specialized Places [] The rules described above for city streets are varied enormously in public places having restricted uses, and in private places. The charge used upon arrest is typically trespass rather than disorderly conduct. We will consider first certain types of public places. [] A. Open thoroughfares in public buildings. The public has a right to demonstrate in public thoroughfares of specialized buildings, such as the Port Authority Terminal, Wolin v. N.Y. Port Authority, 392 F.2d 83 (2nd Cir. 1968), and probably Lincoln Center Plaza. Specialized police may give you an argument, and should perhaps be consulted first. [] B. Subways. The distribution of leaflets in the subway is protected, though subway regulations appear to forbid it on their face, People v. St. Clair, 288 N.Y.S 2d 388 (Crim. Ct. 1968). Larger demonstrations may not be protected, because of the lack of space. [] C. Parks. First Amendment rights in the parks are very similar to those in the street. Parks regulations seem on their face to require a permit for every activity including leafleting, but they are probably unconstitutional. Rockwell v. Morris, 211 N.Y.S. 2d 25 (I Dept. 1961) aff . 10 N.Y. 2d 721 (196 1 ). People v. Kaufman, 264 N.Y.S. 2d 81 (Crim. Ct. 1965). It may be well to apply for such a permit. If you don't get it, you will then have a better defense if you are arrested. [] D. Embassies. The police frequently argue that demonstrations near embassies are forbidden, and set up barricades accordingly. This is not the law, and demonstrations may be held near embassies. People v. Solomonow, supra. [] E. Schools. Demonstrating around schools can be frustrating. Loitering in or near a school is a violation (P.L. 240.35 (5) ) and the statute has been held constitutionally applicable to distributing leaflets adjacent to a school. People v. Sprowal, 17 N.Y. 2d 884 (1966), app. dism. 385 U.S. 649. If the police tell you to move, ask them where to, and try to go there. [] On the other hand, if you try to come as a guest to a school, as a speaker, for example, it is doubtful that the school can refuse to rent you its facilities or permit you to speak, if it rents to others or permits others to speak. East Meadow Comm. Concerts Ass. v. Bd. of Ed., 18 N.Y. 2d 129 (1966). A public facility may not discriminate against certain speakers. [] F. Private Places. In general, private landowners can exclude anyone they choose, for any reason. This rule is varied, however, in the light of three facts. (N.B. These doctrines are not as well-settled as the foregoing and are to be viewed as entailing some risk of conviction.) [] 1. Private property open to the public. In places which are used as public thoroughfares, it is likely that people have the same rights they have on publicly owned streets and may not rightfully be convicted of trespass. The outlying parking lot of a shopping center is a good example. Amal. Food Employees Union, Local 590 v. Logan Valley Plaza, Inc. 88 S. Ct. 1601 (1968). [] 2. Areas open to the public, necessary to reach the audience. When a privately-owned place is open to the public, and demonstrators cannot reach their audience as effectively anywhere except on that place, the First Amendment probably protects the "trespasser." Amal. Food Employees Union, Local, etc., supra. [] 3. Private enclaves. Occasionally, you may want to reach the people in some enormous housing project. When such a development effectively encloses its residents, and insulates them, and if it has areas ordinarily open to day to day traffic, you probably have a constitutional right to demonstrate in those areas. Marsh v. Alabama, 326 U.S. 501 (1945). [] III. [] Problems of Arrest [] Certain aspects of the law of arrest may become relevant, especially the law of resisting arrest and interfering with an officer. [] Any resistance, including passive resistance (e.g., sitting down) is resisting arrest. People v. Crayton, 284 N.Y.S. 2d 672 (1 Dept. 1967). [] A third party may be charged with interfering, for any physical interference, including standing in the way. Policemen frequently make such charges based on verbal interference (though the charges are probably not justified). Keep quiet and note badge number, car number, and any other facts. An arrested witness is almost no use at all, however justified he may be in the eyes of God. [] Although the law may be subject to constitutional objections, resistance, even to an unlawful arrest, may be a crime. (The "no sock law," P.L. § 35.27). [] POLICE DEPARTMENT CITY OF NEW YORK [] February 25, 1969 [] TO ALL COMMANDS: [] Subject: PROTECTION TO BE AFFORDED MEMBERS OF THE PRESS AND OTHER PERSONS RECORDING ACTIVITIES AT PUBLIC DEMONSTRATIONS [] 1. The attention of all members of the Department is called to the provisions of the Rules and Procedures, Chapter 2, paragraph 6.2, which states that "cooperation with the press, radio and television is vital to good relations!" [] 2. Members of the Department should be aware that there are various groups and persons who are interested in gathering news and other information in relation to public activities besides members of the generally recognized news media, such as newspapers, or radio and television stations. There are news-gathering agencies and private citizens who do not necessarily possess press credentials from this Department but who have a valid interest in gathering news information. These people may represent small local newspapers, magazines, etc. [] 3. It has come to the attention of this Department that at public functions and demonstrations representatives of such news-gathering organizations and private citizens have experienced difficulty in the performance of their news-gathering function. [] 4. Members of this Department must be aware that even though members of such news-gathering organizations and private citizens may not possess official press credentials from this Department, they have a right to gather the news as long as they do not violate the laws or other duly promulgated regulations. At the scenes of public functions or mass demonstrations, such persons are to be permitted to perform their functions provided that their actions do not interfere with Departmental operations or injure public safety. [] 5. Only members holding a working press card will be permitted within police and fire lines, in accordance with the provisions of the Rules and Procedures, Chapter 17, paragraph 148.2. However, other persons engaged in gathering new information should not be interfered with while working in otherwise non-restricted areas. [] 6. All persons engaged in news-gathering activities shall be expected to cooperate with this Department and obey all laws. If they do not, proper police action may be taken against them. If they are arrested and property is taken from them, such as notebooks, cameras, film, etc., such property is to be protected and dealt with in accordance with the Rules and Procedures. [] 7. One of the most precious freedoms that we enjoy in this country is that of freedom of the press, and no member of this Department shall do anything to interfere with the otherwise legitimate gathering of news be it by a reporter of a duly recognized news-gathering agency, a free-lance operator, or the representative of a small private publication. [] 8. Commanding officers and supervisory heads shall be responsible that members of their commands are instructed in and comply with the provisions of this order. [] SANFORD D. GARELIK [] Chief Inspector [] T.O.P. 60 [] POLICE DEPARTMENT CITY OF NEW YORK [] July 10, 1967 [] TO ALL COMMANDS: [] Subject: LAWS CONCERNING THE DISTRIBUTION OF HANDBILLS [] 1. At various times throughout the year, inquiries are received concerning the distribution of handbills, particularly with reference to those involving political and civil right matters, and of the interpretation of the laws concerning same. [] 2. This area involves basic constitutional rights and the laws involved are Section 153.17 of the New York City Health Code and Section 755 (2)-7.0, subdivision 5 of the Administrative Code. Both sections of law are similar in language and intent and read as follows: [] a. Section 153.17 of the Health Code entitled "Handbills and Circulars", reads as follows: [] "No person shall throw, cast or distribute or permit to he thrown, cast or distributed, any handbills, circular, card, booklet, placard or other advertising matter in or upon any street, public place, frontyard, courtyard, stoop, vestibule, or hall of any building or letter box therein. This section does not prohibit or otherwise regulate (1) the delivery of any matter by the United States postal service or (2) the distribution of sample copies of newspapers regularly sold by the copy or by annual subscription, or (3) the distribution of anything other than commercial or business advertising matter." (Emphasis supplied.) [] b. Section 755 (2)-7.0, subdivision 5 of the Administrative Code is essentially the same as Section 153.17 of the Health Code. [] 3. The courts have said a municipality may enact regulations in the interest of public safety, health, welfare or convenience, but these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion. [] 4. Members of the force must make a distinction for proper law enforcement between the distribution of handbills that contain commercial and business advertising and those circulars that relate to political objectives. [] 5. The above sections of law prohibit the distribution of advertising matter relating to commercial or business enterprises. However, circulars and handbills which deal with political matters, such as election of candidates, governmental operations, civil rights, foreign policy and any similar issues, may be freely and legally distributed on the streets of this City. Such distribution is an expression of opinion authorized by the Constitution. [] BY DIRECTION OF THE POLICE COMMISSIONER. [] SANFORD D. GARELIK [] Chief Inspector [] S.O.P. 12 [] The publication of this leaflet was made possible by the George E. Rundquist Memorial Fund [] THE LATE, George Rundquist was Executive Director of the New York Civil Liberties Union from its founding in 1951 as an affiliate of the ACLU until his retirement in 1965. Under his leadership, NYCLU undertook such controversial cases as the defense of the right to free speech of George Lincoln Rockwell and the suit which resulted in the U.S. Supreme Court decision barring school prayers. While his public reputation stemmed from these highly publicized cases, he preferred to work outside the limelight and was regarded by his many friends as a skillful behind-the-scenes lobbyist for civil liberties. [] Under George Rundquist, NYCLU published the first leaflet advising people of their rights when arrested. This leaflet has been widely copied. Today, millions of copies of the leaflet in scores of different editions are in circulation. This series of leaflets is intended to carry on George Rundquist's work in advising people of their rights. [] Photo by Maury Englander [] Price 5¢ [] March 1970
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