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April 22, 2009

The Constitution; How Firm a Foundation

Second time town ordinance found unconstitutional    

When it comes to freedom, America has no equal. Our constitution which reflects the beliefs and philosophy of the founding fathers, is the firm foundation upon which our inherent rights as Americans are enshrined. That philosophy; "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..." is the basis for our Constitution with its Bill of Rights. While many Americans are unable to name all ten amendments of the Bill of Rights, almost every American is aware of the First Amendment, the right of free speech. The First Amendment provides other protections beyond speech; "Congress shall make no law respecting the establishment of Religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. While the rights found in the First amendment are unquestionable, they are not absolute. An often quoted example; one cannot yell fire in a crowded movie theater.

As to the specific case at hand; distribution of literature in a public park, there are some limitations. A public park by definition is a traditional public forum. This type of forum enjoys the most protection when it comes to speech. If the government seeks to regulate speech, it has to meet a strict standard. Reasonable restrictions as to time, place and manner of speech are acceptable as long as the restrictions are necessary and narrowly drawn to serve a compelling governmental interest. Some examples;1) A group wants to stage a protest in the park, the town can require a permit so that the town would have advance notice in order to provide adequate resources to ensure public safety. 2) The town posts a notice that specifies that all town parks close at dusk. If some residents wish to stay in the park beyond dusk to protest some town policies, they can be arrested for trespass. 3) The town sponsors a public concert and a group wishes to distribute literature. The town may restrict all groups to specific areas of the park in order to prevent any disruption of the concert and/or require a permit. The operative word is "may" consistent with the circumstances. If this particular limitation of speech calls for the location to be hundreds of feet away from the crowd and or if the permit process is too cumbersome, it may be too restrictive. If there is no discernable public safety concern as to the the activities of the group handing handing out literature, this type of limitation may not be permissible. If the government can meet this standard, the restrictions must be content neutral. That is government must treat all groups equally regardless of the content of their speech. One exception is indecent material.  

When ever there is a controversy over someone's comments, the phrase, "Freedom of Speech" is often quoted. Yet when it comes to actually applying it to the rest of society, many find the first right to be inconvenient. Some have argued that they have the right to be free from harassment or from being annoyed. The distinction between the two is a legal one. The legal definition of harassment is when a person engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. If a person handing out literature engages in the legal definition of harassment, they can be issued a summons or arrested. As to the latter, there is no constitutional protection from being annoyed. As to the particulars in this case, there was no evidence to suggest that the religious group engaged in harassment. Now for the details.

It all started on July 25, 2006. A religious group, Jews for Jesus attempted to enter John J. Burns Park in Massapequa with the intent to distribute literature and to share their faith with others who were interested. Specifically, it was a desire to share the Gospel, the message of salvation through Jesus Christ. As most Christians know, spreading the Gospel is a requirement consistent with their faith. Yes, it's controversial just as it was two thousand years ago, however expressing one's faith is not violative of any law, statute, regulation or ordinance so they thought. After all, it was a public park. Better yet, they understood the First Amendment. Unfortunately, the Town of Oyster Bay willfully decided to disregard the Constitution.

When the religious group attempted to enter the park, they were met by the Commissioner of Public Safety. He advised the group that they would have to obtain a permit prior to handing out any literature. The Commissioner advised the group that Supervisor John Venditto directed him to call the Police if any literature is handed out in the park. When a member of the group informed the Commissioner that she would only discuss her faith with others in the park, the Commissioner called the Police who escorted the group out of the park. The group was then advised that they could not share their faith with others in the park and if anyone in the park was offended by their message, the group would be issued a summons for trespassing. After confirming that the town had no permit process in place, a member of the group returned on August 1, 2006 and was issued a summons by the Police.

In the People v. Mendelson, April 4, 2007, the court ruled that the ordinance was unconstitutional on it's face and dismissed the trespassing charge. The court found the following; a) the ordinance was overly broad in that it prohibited "a wide range of constitutionally protected activities, including speech, without first obtaining "special permission of the Town Board.", b) the ordinance provided no specific guidelines, standards, or criteria for granting or denying a permit, c) the ordinance regulated all first amendment activities without regard to time, place or manner restrictions, and d) the town refused to issue Susan Mendelson a permit. Based on the findings, the court ruled that the ordinance was a prior restraint of the Mendelson's right of free speech. The wording of the town code; 

"No person shall erect any structures, stand or platform; hold any meeting; perform any ceremony; make a speech, address or harangue; exhibit or distribute any sign, placard, notice, declaration or appeal of any kind or description; exhibit any dramatic performance or the performance in whole or in part of any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy, dancing, entertainment, motion picture, public fair, circus, juggling, ropewalking or any other acrobatics or show of any kind or nature; or run or race any horse or other animal, or, being in or on a vehicle, race with another vehicle or horse, whether such race is founded on any stake, bet or otherwise, in any park or beach except by special permission of the Town Board. No parade, drill or maneuver of any kind shall be conducted, nor shall any procession form for parade or proceed in the park without special permission of the Town Board." (Emphasis added.)

On June 22, 2007, Susan C. Mendelson filed a 1983 Civil Rights action in federal court and reached a settlement with the Town of Oyster Bay. In July 2007, the town's Department of Parks issued new regulations relating to the distribution of literature in town parks. The regulations provided several definitions such as "special event" and "demonstration" and established a permit process, however, the new regulations were overly broad. A permit was required any time literature was to be distributed in town parks. The time, place and manner as to the distribution of printed material was limited to a table at a fixed location within the park. The town also required a $150 maintenance deposit prior to the issuance of the permit. On June 24, 2008, the town adopted a local law amending the town code that was previously declared unconstitutional. The wording of the amended code;

"No person shall erect any structure, stand or platform; conduct any parade, drill or maneuver of any kind, form any procession for a parade or proceed in the park; hold any meeting; perform any ceremony; exhibit or distribute any sign, placard, notice, leaflet, declaration or appeal of any kind or description; exhibit any performance or show of any kind or nature; or run or race any horse or other animal, or, being in or on a vehicle, race with another vehicle or horse, in any park or beach except by permit issued by the Commissioner of the Department of Parks. The commissioner shall promulgate such regulations as may be necessary and appropriate to issue and enforce such permits, consistent with the legislative intent set forth herein, as approved by the Town Board."
 

On July 29, 2008, Susan Mendelsohn and another member of "Jews for Jesus" entered John J. Burns park in order to share their faith and distribute literature. On this day, a free concert was being held which was part of the Town's "Music under the stars" concert series. Mrs. Mendelsohn and Mr. Stamm were approached by the town's commissioner of Public Safety and were advised that a permit was needed to distribute literature. They were told that they could apply for a permit on the spot which would be granted allowing them to distribute literature from a table at a location in the rear of the crowd. Mrs. Mendelsohn declined and continued handling out literature. She was then told that she would have to leave the park or would be arrested. The Police were called and again Mrs. Mendelsohn refused to obtain a permit or leave the park. She was then arrested for trespass and violating the town's regulations relating to obtaining a permit. Mr. Stamm was allowed to leave without being arrested at the request of Mrs. Mendelsohn.    

In the People v. Mendelson, March 17, 2009, the court ruled that the revised ordinance and related regulations were unconstitutional on their face. The court found that the revised regulations were overly broad as the regulations applied to "any person, at any time, anywhere in a Town Park or recreational facility" and were not limited to only special events and demonstrations. From the ruling; "Although it may have been the Town's intention to limit the permit requirement to "Special Events" and "Demonstrations," the Code and Section 3(f)(2) of the Regulations are much broader in their scope and application. Section 168-16 of the Code provides, without limitation, that "No person shall ... proceed in the park ... or distribute any ... leaflet ... except by permit issued by the Commissioner of the Department of Parks." Similarly, Regulations Section 3(f)(2), which is not contained in the New York City regulations adopted by the Town, provides, without limitation, "No person shall engage in the distribution of printed or similarly expressive material without a permit issued by the Commissioner." On their faces, these sections do not limit the permit requirement to "Special Events" or "Demonstrations," but apply to any person, at any time, anywhere in a Town Park or recreational facility, and remain subject to a constitutional challenge for their over breadth."

What is so disturbing here is that the Town willfully engaged in a pattern of conduct that was openly hostile to free speech and religious liberty. The town was well aware of the constitutional questions surrounding their ordinance yet they willfully chose to ignore it. The town actually defended the indefensible in court wasting taxpayer funds for legal fees and to settle a 1983 Civil Rights action. When the town amended their ordinance in an effort to comply with the court's ruling, the amended ordinance was again flawed but the town refused to listen. For more then two years, the Nassau County Civic Association, Inc. made a good faith effort to work with the town to amend the ordinance consistent with the constitution and legal precedent. In September 2007, our Executive Director Robert Kosowski an attorney appeared before the town board and testified that the law as written was unconstitutional. When asked to comment, the US Department of Justice Special Counsel on Religious Liberty, Eric Treene agreed that the amended ordinance was unconstitutional yet the town in its own arrogance dragged their feet when asked to amend the ordinance.

When the second court ruled that the amended ordinance was unconstitutional, it was apparent that the town believed their actions were justified. From Newsday; "Supervisor John Venditto said that to "prevent any controversy," the town board would change the ordinance immediately to specify that permits would be required only for special events and demonstrations". The Supervisor obviously ignored the controversy for more then two years even though he was aware that it was unconstitutional. He further went on to say, "I'm very satisfied with the decision to the extent that it recognizes the town's right to regulate the distribution of literature at town events", "I believe our ordinance will soon pass constitutional muster." The town sought to regulate all speech requiring a permit and a bond prior to exercising freedom of speech in a traditional public area such as a park. John Venditto was certainly aware of the distinction between regulating a demonstration or a public event versus all speech.

Again, it's not a question of sound public policy but rather a question of established constitutional law and Supreme Court precedent. The fact that an ordinance may be practical or what you believe to be reasonable does not make it constitutional. The town’s ordinance as written prohibited free speech and resulted in a prior restraint of speech. The issue is not whether someone can distribute hand bills, but whether our government recognizes the principle of religious liberty which rests upon the right of free speech. Does the town of Oyster Bay recognize religious liberty? Ask Susan Mendelsohn.

 


 

Free Speech cases of interest:

"Streets and parks may rest in governments, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens." Hague v. CIO, 307 U.S. at 515.

Schneider v State

Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983)

Int'l Society for Knisna Consciousness v Lee (1992)

Frisby (1988), Kokinda (1990)

The Nassau County Civic Association, inc. defends religious liberty consistent with our mission statement. An orthodox Jewish group was denied access to a library and a facility in the town of Hempstead inconsistent with established case law and the constitution. We agreed to intervene and were able to bring a positive resolution to the matter guaranteeing this group equal access without regard to the content of their speech. Unlike the town of Oyster Bay, the town of Hempstead and the library worked hard to resolve the matter.