POLITICS
De Blasio At Odds With 1st Amendment on Protests?
Hofstra public law professor discusses what a health emergency can and can’t override
BY DUNCAN OSBORNE
On the same weekend
when police attempted
to shut down a press
conference held by the
Reclaim Pride Coalition in the East
Village saying that public gatherings
of any size are “unlawful” in
New York City and threatening the
participants with arrest, media
were fi lled with stories showing
large numbers of people gathering
in city parks and police enabling if
not encouraging that behavior by
offering face masks to people in
the parks and requiring people to
be six feet apart.
“This is messy, the whole thing
is messy,” said Eric Lane, a professor
at Hofstra University’s law
school who teaches public law and
public service and has extensive
experience in New York City and
State government.
The Coalition members gathered
at 16th Street and First Avenue in
Manhattan on May 3 to protest the
Mount Sinai Health System inviting
Samaritan’s Purse, a rightwing
evangelical group, to open
its medical tents in Central Park
to assist in the response to the
COVID-19 outbreak in the city.
Franklin Graham, who leads
Samaritan’s Purse and is the son
of the late Billy Graham, has a
long anti-LGBTQ and anti-Muslim
record. He is a vocal supporter of
Donald Trump. Graham heralded
the group’s arrival in the city with
a March 29 tweet inviting any
“Christian doctor, nurse, paramedic,
or other medical professional
interested in serving COVID-19
patients” in their fi eld hospital to
apply.
There were immediate and vehement
objections from LGBTQ leaders
and activist groups to Mount
Sinai partnering with Samaritan’s
Purse and two protests in Central
Park, one by the Coalition on April
14. While police just watched the
earlier Coalition protest, they arrested
Reverend Billy Talen from
the Church of Stop Shopping when
he tried to deliver a Rainbow Flag
to the fi eld hospital on April 6.
Socially distanced Reclaim Pride demonstrated deemed in violation of mayoral policy on May 3.
On May 3, police fi rst threatened
the Coalition protestors, who all
wore face masks and stood six feet
apart, with arrest if they did not
disperse. Some protestors left. Prior
to the start of the press conference,
police told reporters and participants
they would be arrested or
given summonses if they did not
leave. Some police stood between
reporters holding cameras and the
speakers at the press conference.
Ultimately, the event went forward
and just one person, activist Ann
Northrop, was given a summons.
Police are relying on an executive
order issued by Mayor Bill de Blasio
that banned “any non-essential
gathering of individuals of any size
for any reason.” That order relies
on an executive order from Governor
Andrew Cuomo. What may
be unlawful is not the gathering
because neither the mayor nor the
governor can create a crime with
an executive order even when the
State Legislature has empowered
the governor to broadly respond to
COVID-19.
“No executive order can create
a crime,” Lane said. “It has to be
based on a statute. I don’t think
it’s constitutional to have a statute
that says the governor can create a
crime… Under the American constitutional
system, only the legislature
can characterize certain
kinds of conduct as a crime, and
that’s limited also.”
ANDY HUMM
The mayor exempted city parks,
including the High Line, which is a
public/ private partnership, under
another executive order that limited
the crowd size of large gathering
spaces to 50 percent of capacity.
What is illegal under state law is
violating an emergency order that
has been lawfully issued. That is a
misdemeanor.
“The presumption is that the actions
of the government are lawful,
so violating an emergency order
can be a misdemeanor,” Lane
said.
But with their executive orders,
the mayor and the governor have
assumed that they can ban all
in-person First Amendment activity.
The mayor chose to exempt
one form of First Amendment activity
— meeting in city parks for
picnics and tanning — though it is
certainly not clear that the risk of
transmitting COVID-19 is greater
while standing on a city sidewalk
six feet from other people while
wearing a mask than sitting in a
city park six feet from other people
while wearing a mask. The city
can regulate the time and place of
demonstrations, but it cannot ban
them entirely.
“You can’t have an executive order
from the governor that infringes
on the First Amendment, but
you can have competing interests,”
Lane said.
The government’s interest is in
limiting the spread of COVID-19,
which is not trivial. The Coalition
has an equally important interest
in expressing opposition to the
presence of an anti-LGBTQ group
that entered New York City, which
is religiously diverse, with an announcement
it would only recruit
Christians to volunteer in its tents
and that volunteers had to sign a
statement pledging fealty to Graham’s
anti-LGBTQ views. Samaritan’s
Purse is neither a ministry
nor a church; it is a non-profi t and
donations to it are tax-exempt.
“I think you can well make the
argument that a contextually rational
protest of action by the hospital
is essential,” Lane said.
At May 4 and 5 press conferences,
the mayor and Dermot Shea,
the city’s police commissioner,
both defended the police action at
the May 3 press conference with
the mayor going so far to say that
New Yorkers had to keep political
protesting virtual.
“People who want to make their
voices heard, there’s plenty of ways
to do it without gathering in person,”
de Blasio said on May 4. “And
just the question is always whoever
has whatever, because they
want speak to, are they interested
in protecting people’s lives? If they
are, use all the other tools you have
to get your point across, but avoid
anything that might put other people
in harm’s way.”
The activists, including Norman
Siegel, the longtime civil right attorney,
are just as adamant that
their protests are essential and,
as important, the city cannot ban
their in-person First Amendment
activities.
Ultimately, Samaritan’s Purse
announced plans to leave the city
after operating its fi eld hospital for
just over a month and treating 300
patients or less than one percent of
the 43,676 people who were hospitalized
in the city.
“I think the police shouldn’t
have done it,” Lane said. “They
should have stayed there and
made sure people were social distancing…
I think they probably
overreacted.”
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