Jennifer Van Bergen: The March - February 15th

On Saturday, February 15th, a crowd that organizers believe will be the largest yet, will gather in New York City to march by the United Nations in protest against war on Iraq.

This is a massive and powerful outpouring of sentiment that New York City police and the District Court for the Southern District of New York would suppress.

On January 24th, United for Peace and Justice (UPJ) filed a request for a permit for the anti-war event. Following consistent efforts by the UPJ to speed a permit decision and several delays by the City, the City announced on February 4th that it would not allow ANY march to take place anywhere in the city for the event. The City offered the protestors only the option for a stationary rally not in view of the United Nations.

Meanwhile, the City has been regularly issuing permits this past year for cultural parades of equal or larger size than the one proposed by UPJ. These include parades for Dominican Day, Puerto Rican Day, and St. Patrick's Day.

The New York Civil Liberties Union (NYCLU) filed a complaint before the District Court on February 5th and the Court issued its opinion on February 7th, denying the request for an injunction against the New York Police Department. The NYCLU filed an appeal brief on Tuesday, February 11th. The Second Circuit Court of Appeals is scheduled to hear oral argument tomorrow.

Marching in a public street in conjunction with political protest lies at the core of First Amendment rights. Not only that but, as the appeal brief points out, "this march is on a matter of urgent and international concern." The brief states: "No evidence needs to be adduced to establish that the United States appears to be on the brink of initiating war against Iraq."

Leslie Cagan, the event's lead organizer, testified that there is great significance for the march to pass in direct view of the United Nations. Cagan pointed out in her testimony that the U.N. is responsible for monitoring activity in Iraq and sponsors the weapons inspections currently taking place in Iraq. Just as Colin Powell took his message in favor of war to the U.N. and Hans Blix is scheduled to report to the U.N. Security Council on February 14th, UPJ also seeks to use this march to bring to the U.N. its message of mass opposition to the efforts of the United States.

Under First Amendment law, the government is allowed to place "time, manner, and place" restrictions on speech, including protest marches, but these restrictions must be "content-neutral," narrowly tailored, and must leave ample alternative channels for the communication of the information. In other words, the government may not prohibit protest marches against the government while allowing marches in support of something else. This would be a content restriction. If the government wants to place a restriction, it must apply to everyone across the board - anti-war protestors as well as those marching to celebrate their Hispanic or Irish descent.

A narrowly tailored restriction must be the least possible restriction the City could put into effect. Thus, if the City wanted to restrict all marchers, no matter what the content of their march, for reasons of public policy associated with safety, peace, and good order, it would have to find the least restrictive way to do so. The NYCLU contends that simply barring ALL protest marches is not a narrowly tailored restriction. It is so broad, in fact, that it essentially prohibits all such protest.

Leslie Cagan explained:

Marching en masse in a public street on matters of pressing public importance is a time-honored tradition in New York City and is perhaps the single most important method of demonstrating large public support for a particular cause. By marching, those attending are able to participate actively in the demonstration. Moreover, the image created by tens of thousands of people marching through the streets is very different and more powerful than that created by a stationary rally.

Cagan declared that the denial by the District Court "is yet another example of the damage that is being done to our constitutional democracy in a post 9-11 environment."

An interesting side-note is that the cultural parades often have resulted in 300 to 400 arrests, while prior protest marches have resulted in no clashes or arrests.

Once again, the government has raised the vague possibility of security threats as a reason to undermine civil liberties where there is absolutely no reason to conclude that a protest march against war would promote or enable a terrorist attack.

It is now more important than ever for Americans to show the world that the terrorist attacks of September 11th did not murder democracy.

Jennifer Van Bergen is a contributing writer for truthout. She has a law degree from Benjamin N. Cardozo School of Law in New York, and is a faculty member of the New School University in New York where she teaches in the writing program.

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