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NEW JERSEY

P.O. Box 32159 Newark, NJ 07102 Tel: 973-642-2086 Fax: 973-642-6523 i nfofdaclu-n] .org www.aclu-nj.org

Frank Corrado President Deborah Jacobs Executive Director Edward Barocas Legal Director

February 17,2012 Robert J. Shaughnessy, Jr., Asst. Deputy Director Division of Property Management and Construction P.O. Box 229 Trenton, New Jersey 08625-0229 Fax: 609-984-8495 Re: Proposed New Rules N.J.A.C. 17:15B Reference No. PRN 2011-254. Dear Mr. Shaughnessy, On behalf of the American Civil Liberties Union of New Jersey, I am writing to provide comments on the rules proposed by the Division of Property Management and Construction regarding the use of Veteran's Park (i.e., the New Jersey World War II Memorial). First, the ACLU-NJ is concerned that Veterans Park has been singled out for restrictions. Rules regulating activities on State buildings and grounds (formerly N.J.A.C. 17:15A) expired on July 1,2006, and have not been replaced. One can only assume that this reflects the State's realization that our Constitution and laws of general application are sufficient to the task. Free speech and assembly in Veterans Park was regulated by these rules prior to their expiration. The proposal under consideration presents no reason whatsoever as to why Veterans Park should be singled out from all of the other State buildings and grounds that were formerly subject to the same set of rules for special regulation limiting free speech and assembly. It is only following the use of the park by a particular group, namely Occupy Trenton, that restrictions are now sought to be imposed. The State identified no problems with the use of Veterans Park, including by numerous groups of demonstrators of various stripes over the years, before Occupy Trenton began its still-continuing 24 hour a day, seven days a week vigil. In fact, these proposed regulations first appeared as part of the defendants' responding papers to the plaintiffs' successful preliminary injunction application in Occupy Trenton v. Zawacki, N.J. Superior Court Chanery Division, Mercer County Docket No. C-72-11.

It is no surprise therefore that, numerous specific provisions of the proposed regulations are not at all focused on ensuring park safety or pedestrian traffic flow, but are instead targeted specifically at expressive activity and assembly protected by the United States and New Jersey Constitutions. As such, these regulations should be rejected in their entirety. As noted by the New Jersey Supreme Court: "[W]e must not forget that our constitutional free speech provision is different from practically all others in the nation .... In New Jersey, we have an affirmative right of free speech, and neither the government nor private entities can unreasonably restrict it." New Jersey Coalition Against the War in the Middle East v. JMB. Realty Corp., 138 N.J. 326, 369 (1994) (emphasis in original). Short of withdrawing the regulations entirely, the specific provisions that target speech, as well as others that appear overly broad or unnecessarily restrictive, should be rescinded or modified, as is discussed in more detail below. Parks, like streets and sidewalks, are "traditional public forums" -- places that, "time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515 (1939). These forums occupy "a special position in terms of First Amendment protection." United States v. Grace, 461 U.S. 171, 180 (1983). Veteran's Park is an archetypical example of the traditional public forum. It is directly across the street from the principal entrance to the Statehouse and the windows of the Governor's office look directly out to it. It is impossible to imagine a more suitable place for political assembly and speech other than the Capitol Plaza directly across State Street. Moreover, for as long as the Park has been in existence, it has in fact been the site of public assembly in the form of demonstrators and petitioners of all stripes. Sometimes these assemblies have been in conjunction with larger demonstrations across the street on the State House grounds, often because demonstrators at large events have been directed to go there rather than block the traffic on State Street. The Park is also frequently used by people gathering petitions or by groups that gather there for discussion and instruction before crossing the street to visit their legislators, the Governor or other government offices. And, of course, school and tourist groups very frequently gather there for its excellent view of the Statehouse, as well as to view the World War 2 Memorial.. Government regulation "requiring a permit ... before authorizing public speaking, parades or assemblies 'in the archetype of a traditional public forum' is a prior restraint on speech." Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (internal citation omitted). A "heavy presumption" exists against the validity of prior restraints and the government "carries a heavy burden of showing justification for the [ir] imposition." New York Times Co. v. United States, 403 U.S. 713, 714 (1971); see also Alexander v. United States, 509 U.S. 544, 554 n.2 (1993); FW/PBS, Inc., v. Dallas, 493 U.S. 215, 225 (1990). The basis for this presumption is "a distinction deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975). As such, unless the government can establish that a restriction serves a "substantial" government interest and is "narrowly tailored" to that interest, the government cannot take it upon itself to restrict the manner of expressive activities. Clark v. Community for Creative Non- Violence, 468 U.S. 288, 293 (1984). The proposed regulations at issue here are prior restraints on speech and, thus, each limitation contained therein must be "narrowly tailored" to serve a "substantial" government interest. The ACLU-NJ submits

objections to the regulations based on the fact that numerous proposed provisions are overly broad, vague, or unnecessary and are thus not "narrowly tailored" to serve a "substantial" government interest: 1. Definition of "gathering" a. The definition appears to target speech and political assembly.

The definition of "gathering" (for which a permit to use the park will be required) is quite confusing. The first sentence sets forth that a gathering includes "any assembly of 10 or more persons for any purpose." (emphasis added). However, the second sentences states: "This term does not include casual Memorial use by visitors or tourists that do not have an intent or propensity to attract a crowd or onlookers." There is simply no way to reconcile a phrase that allows for no exemptions whatsoever ("for any purpose") with a sentence setting forth an exemption. Indeed, if the second sentence means (as it appears to) that tourist groups, no matter how large, do not require a permit, then this sentence is evidence that the concern of the State is not about obstruction or pedestrian flow but, rather, is to inhibit speech activities. Simply put, it is irrational not to require a permit for a group of 300 persons (e.g. a large veterans group or school group) who intend to utilize the Memorial for hours (perhaps to peruse the monuments and then have a picnic thereupon), which would severely impede the ability of others to enjoy the Monument, but at the same time mandate a permit and prior notice requirement for a non-obstructive group of ten people who wish to stand and hold candles during their lunch hour as a silent vigil. Permitting busloads of individuals to gather at Veterans Park without a permit while requiring a permit for political gatherings plainly amounts to de facto regulation on the basis of the makeup of the crowd and/or the content of the assembly's anticipated speech. As such, it is improper and must be rejected. b. The regulation improperly imposes restrictions on small non-obstructive gatherings.

Courts have uniformly concluded that a permit requirement is unconstitutionally over-inclusive when applied to small and non-obstructive expressive events. See, e.g., Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996); Grossman v. City of Portland, 33 F.3d 1200, 1207 n.7 (9th Cir. 1994); Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1393-4 (D.C. Cir. 1990); Rosen v. Port of Portland, 641 F.2d 1243, 1247-8 n.8 (9th Cir. 1981). In Douglas, the court addressed a permit requirement for groups of 10 or more persons, just as has been proposed here. The court struck down the permit requirement as unconstitutional. The court explained that "applying the permit requirement to such a small group ... [was not] sufficiently tied to the City's interest in protecting the safety and convenience of citizens .. .? 88 F.3d at 1524. Similarly, the court in Grossman held that an ordinance requiring a permit for any "organized" demonstration, regardless of size, was not narrowly tailored, and noted that other cities' ordinances, applicable only to groups of 50 or more persons, were "much more narrowly tailored." 33 F.3d at 1207 n.7. Like the permit schemes above, the permit scheme in the proposed regulations is similarly flawed. Given the size of the Memorial and, indeed, the State's acknowledgement that the Memorial can accommodate gatherings of well over 100 people, placing restrictions on a small assemblage of as few as 10 people is unnecessary to meet the State's needs. Indeed, in the cases above, courts have refused to allow imposition of permit requirements for gatherings of less than 20 people when those assemblages occurred on streets or sidewalks. The forum at issue here is a significantly-sized park, with the length of

an entire city block and the width of a large urban lot. In other words, a small gathering is far less obstructive in the Memorial than in the narrow confines of a city sidewalk. If the courts do not permit such limiting restrictions on assemblages on the city sidewalks, a fortiori such limitations would not be permissible in the more expansive public forum of the Memorial. Following lawsuits taken by the ACLU-NJ against the City of Newark, the City has now adopted a permit scheme that requires a permit only when a gathering will be 50 or more people. The ACLU-NJ suggests there is no reason not to have the same number requirement in the Memorial as well. 2. The regulations must not grant unfettered discretion to an official to deny applications spontaneous speech for

When government imposes prior notice requirements for speech, it must nevertheless accommodate "spontaneous speech." Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 167 (2002). The proposed regulation does contemplate permitting spontaneous speech; however, in so doing, it grants unfettered discretion to officials in the Office of State Government Security to grant or deny an application. "It is settled by a long line of ... decisions ... that an ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official- as by requiring a permit or license which may be granted or withheld in the discretion of such official - is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Staub v. City of Baxley, 355 U.S. 313, 322 (1958). Here, the grounds for denying a permit are set forth in proposed regulation 17: 15B-l.4. However, the language of 17: 15B-l.3 is vague as to whether these are the grounds upon which the Office must rely in determining whether to grant or deny an application that arrives within 72 hours of a desired use of the Memorial. The regulations should make clear that the grounds set forth in 17:15B-l.4 remain the sole grounds for denial, even for spontaneous speech. The ACLU-NJ again recommends that the State adopt the language used by the City of Newark. See Newark General Ordinance 5: 10-1 et seq. (available at http://70.168.205.112/newark njll pext.dll? f=templates&fn=main-h.htm&2.0). The City'S ordinances sets forth waivers of the time period of the notice requirement "shall not be unreasonably withheld" and that any denial should be related solely to the City'S inability "to provide for legitimate safety and traffic concerns." The ordinance further explains that, if a waiver is denied, "all efforts shall be made to find alternative avenues for the applicant to reach his or her intended audience." 3. The regulations cannot require persons engaging in free speech activities to pay for police or private security

The regulations set forth that the Office can condition approval of a permit "on the applicant group's providing its own marshals [and] toilet facilities .... " However, police security is part and parcel of the State's public function. It is no different whether police are needed at a park because of a gathering for expressive activities, for softball playing, for picnicking or any other reason people go to a park. Further, numerous courts have acknowledged that permit schemes must provide for an indigency exception to burdensome monetary permit conditions, so that poorly-financed speakers are not foreclosed from the exercise of their fundamental right. See Central Florida Nuclear Campaign Freeze v. Walsh, 774 F.2d

1515 (11th Cir. 1985), cert. denied 475 U.S. 1120 (1986); Invisible Empire of the Knights of the Klu Klux Klan v. Thurmont, 700 F.Supp. 281, 286 (D.Md. 1988); Invisible Empire of the Knights of the Klu Klux Klan v. City of West Haven, 600 F.Supp. 1427, 1435 (D.Conn. 1985); see also Eastern Connecticut Citizens Action Group v. Powers, 723 F.2d 1050 (2d Cir. 1983) ($200 administrative fee unreasonable and unconstitutional); but see Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th Cir. 1991), cert. denied, 502 U.S. 899 (1991); United Food & Commercial Workers Union Local 442 v. City of Valdosta, 861 F.Supp. 1570, 1584 (M.D. Ga. 1994); Gay and Lesbian Services Network v. Bishop, 841 F.Supp. 295, 296-297 (W.D.Mo. 1993). In addition, an exception for free speech activities may be required under the New Jersey Constitution's more protective speech and assembly provisions. New Jersey Coalition Against the War in the Middle East v. J.MB. Realty Corp., supra. 4. The definition of "structures" is overly broad

The regulations include a probation on all "structures," which would include temporary coverings (i.e., a canopy) to keep speakers and equipment (including, for example, self-contained electrical equipment which is not subject to 17:15B:1.13) safe from inclement weather. It appears from a reading of the regulations that the Office cannot even grant a permit for such a canopy, even when there is a permit granted for a gathering of over 100 people and a large platform is permitted. The prohibition also seems to apply to many things that demonstrators might choose to use as signs or symbols in order to communicate with the public at large, such as banners supported by poles or set up as a backdrop for speakers, large puppets and props that might be set down on the ground while people carrying them listen to a speech, etc. Even such objects as tents might be set up for their symbolic value in a demonstration against homelessness or a demonstration that wishes to recall the living conditions that soldiers have borne from the Revolution until today. This prohibition serves no purpose other than overblown and exaggerated security concerns. Every car passing along State Street presents more of an enclosure and more of a security threat than a demonstrator's tent. At the very least, it is not "narrowly tailored" to a substantial government interest. It should therefore be eliminated. 5. It is inappropriate to ban both use of electricity and use of generators.

Proposed regulation 17:15B-1.13 precludes permit holders from utilizing the electrical outlets located throughout the Memorial "for use during gatherings." (It does not contain such a prohibition on nonpermit holders at the park: If this is an oversight, it should be corrected; if this is not an oversight, it improperly targets expressive activities.) The regulation goes on to implicitly preclude use of the park for gatherings any time "electrical energy is required." To be clearer, the regulation should set forth that permit applicants should indicate whether the gathering "requires electrical energy that cannot be supplied by means other than electrical outlets." Presumably, the State does not mean to foreclose the use at gatherings of self-contained battery-powered items or non-gas-powered generators.'

I The terms "electrical energy" and "generator" are undefined and, if taken at their dictionary meaning, can be read so broadly as to potentially preclude the use of any battery powered items such as mobile phones or video equipment.

Finally, given the fact that a permit scheme is now being created, there is no reason to ban gas-powered generators, much less all generators as the regulation sets forth. Gas-powered items are permitted in other parks throughout the state. See NJ.S.A. 7:2-2.12(£). The permitting scheme being set up via the proposed regulations ensures that any safety concerns (of which gas generators provide no special danger if used outdoors, so they in fact create no safety concerns) can be monitored. In general, the ban on both generators and use of electricity seems overly burdensome and, in fact, geared to preclude the large gatherings that the permitting scheme otherwise allows. Given that the State acknowledges via these regulations that large gatherings of over 100 people are appropriate in this park, it is inappropriate to so severely limit normally-used means of communicating to the gathering. The plain fact is that any amplification system requires electrical power and that portable amplification systems large enough to be suitable for outdoor use with a crowd are almost always powered by either plug-in power or a gasoline generator. To the extent that some amplification systems are now powered by solar, they require setting up solar panels that would appear to be prohibited by the proposed restrictions on structures. Plainly, there is no purpose to these blanket restrictions on the practical use of electric power other than to severely limit free assembly and speech. They should not, therefore, be approved. 6. The proposed rules have not been harmonized with the rules regulating the use of the Statehouse grounds and therefore create inordinate barriers to large demonstrations in front of the Statehouse.

The New Jersey Statehouse Commission has established a permitting scheme for the State Capitol Plaza2 which is directly across the street from Veterans Park, yet the proposed regulations are not only in many ways more restrictive than those regulations (which, for example, permit sound systems with no prohibition of generators to run those systems or of temporary structures such as loud speaker stands), they completely fail to harmonize with those rules. Large demonstrations on the State Capitol Plaza frequently spill-over into Veterans Park. Do they need to obtain a separate permit? Can the organizers set up speaker stands so that the people gathered in Veterans Park can better hear? On the other hand, Veteran's Park provides an appropriate location for counter-protests to those protests being held in Capitol Plaza. Clearly, the failure to harmonize the Veterans Park rules with the Capitol Plaza rules is evidence of the inadequacy of the proposed regulations. Conclusion We urge you to reject the proposed rules in their entirety. Failing that, we urge you to, modify, or clarify the proposed rules so as to comply with both the spirit and mandates of the constitutional rights to free speech and assembly.

2

These rules are not included in the New Jersey Administrative

Code and the ACLU-NJ has been unable to find any of the Administrative Procedure Act.

evidence that they were promulgated

in accordance with the requirements

Thus, the reference to these rules herein is not intended to suggest that these rules are themselves valid. These comments merely recognize the longstanding existence of the Capitol Plaza permit rules and the resultant need of any rules proposed for Veteran's Park to harmonize with those requirements.

Thank: you for your attention to this matter. Please feel free to contact me with any questions. Sincerely,

{~=fL~s;wi~ /U3
Cooperating Attorney

Legal Director

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