No-demonstration zone at 2004 RNC Convention did not violate First Amendment

The Republican National Convention in 2004 attracted tons of protesters in the busiest neighborhood in the country: midtown Manhattan at Madison Square Garden. The New York Police Department set up demonstration areas to accommodate the protesters. It also set aside a no-demonstration zone in light of the large volume of pedestrian traffic that might be impeded by leafleting and stationary public assemblies. The Court of Appeals says the no-demonstration zone was legal.

The case is Marcavage v. City of New York, decided on August 2. First Amendment lawyers are familiar with "time, place and manner" cases. Under time, place and manner, the government can regulate speech in a public forum (such as sidewalks and town squares) if the rules are content-neutral, narrowly tailored and leave ample alternatives for speech. Time, place and manner gives the government a lot of leeway to regulate speech, and cases like this usually lose. This one does.

The no-demonstration zone is content-neutral in that it does not discriminate on the basis of political message. The questions here: whether the zone is narrowly tailored and leave open ample means for speech. The no-demonstration zone is narrowly tailored to satisfy a legitimate government interest because the government needed to clear a channel for pedestrians and it also had compelling security needs in light of the large number of people and public officials in the neighborhood, including the President. Taking language from the Tenth Circuit, the Second Circuit (Jacobs, Livingston and Leval) says, "as long as a designed security protocol reduces a plausible and substantial safety risk, it directly and effectively advances a substantial government interest." Plausible security concerns will pass muster under the First Amendment.

The protocol was also narrowly tailored because "[t]he restricted zones were confined to a two-block stretch of Seventh Avenue and were in place only during the four days of the Convention. And the policy was tailored to meet the congestion and security challenges that the Convention presented. The frozen zone was limited to the sidewalk immediately in front of a single side of the Garden. The no-demonstration zone was limited to the opposite sidewalk, which had to be kept unobstructed to accommodate the heavy pedestrian traffic that usually occupies both sides." This reasoning seems limited to large events in New York City, which seems to have a separate set of rules governing public assemblies in light of the many security and other factors that are unique to Manhattan.

The no-demonstration zone also left the plaintiffs and other protesters with ample, or adequate, alternative means to protest. There were demonstration areas set up in the neighborhood, including a stage and sound amplification equipment, which all protesters, including plaintiffs, were able to use. This was in close proximity to the intended audience, the Republican delegates. While plaintiffs argued that the demonstration area was not within "sight and sound" of the intended audience (not a bad argument), the Court of Appeals will not adopt that legal standard as a hard-and-fast rule, and it expressly rejects a Ninth Circuit case that endorses that approach under time, place and manner.