Protestors have been denied permission to demonstrate outside the Daniel Patrick Moynihan Courthouse on Jan. 20 as part of a national day of protest over the U.S. Supreme Court’s controversial decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), which prohibits the government from placing limits on independent spending for political purposes by corporations and unions.
Southern District Judge Lewis A. Kaplan (See Profile) ruled on Jan. 19 that the General Services Administration did not run afoul of the First Amendment when it denied a permit for the group “Occupy the Courts,” which planned to gather 150 to 200 protestors in the plaza that sits on the western side of the federal courthouse between the Worth and Pearl streets.
Judge Kaplan refused to order a preliminary injunction that would have forced the General Services Administration to issue a permit for the protest, which is billed as “a one-day occupation of space and mass exercise of First Amendment rights” near more than 120 federal courthouses in at least 46 states across the country, including the U.S. Supreme Court, according to the group’s complaint.
The complaint also stated that the hoped-for protest in between the courthouses would involve some 200 “non-corporate persons” who will hold “a small rally with speakers and maybe some singing.”
But Judge Kaplan ruled that the space is not a public forum and that the General Services Administration was merely enforcing a content neutral regulation when it denied a permit and had acted reasonably given security and other concerns.
The judge’s ruling from the bench in Wolfman v. French, 12 Civ. 0443, followed a two-hour hearing, leaving little time for Occupy the Courts and name plaintiff Jarrett Wolfman to race to the U.S. Court of Appeals to mount a last-second challenge.
Plaintiffs’ attorney Gideon Oliver, who is president of the New York City chapter of the National Lawyers Guild, said he was not sure whether Mr. Wolfman would appeal.
Mr. Wolfman took the witness stand briefly to describe his interactions with Wesley French, manager of the General Services Administration, beginning in mid-December, when he claims Mr. French indicated that obtaining a permit for the demonstration, from 4 p.m. until 6 p.m. would be possible.
But Mr. French informed Mr. Wolfman on Jan. 13 that the permit application had been denied, citing security concerns raised by the U.S. Marshal’s Service, which noted that Friday is a day of heavy traffic at the courthouse because of the regularly scheduled naturalization ceremony for new U.S. citizens and because of the ceremonial swearing in of Southern District Judge Alison J. Nathan.
Judge Kaplan credited the testimony of Deputy U.S. Marshal James Howard on traffic and security concerns, which was cited by Assistant U.S. Attorney Natalie Kuehler in her argument.
Judge Kaplan said, “There is no way to know that plaintiffs’ prediction that this gathering would be limited to 200 people or less will come to pass,” and he referenced Ms. Kuehler’s question to Mr. Wolfman about his Facebook page, which indicates that the number of people suggesting they would attend was around 3,000.
Judge Kaplan said he was ruling as a matter of law that the area, a triangular patch that sits between state Supreme Court and 500 Pearl St., is not a public forum.
But he also found the plaintiffs had completely failed on the facts to show that it was a public forum.
The judge said the General Services Administration’s denial of the permit was content-neutral because it was based on established policy not to permit any gatherings in that space.
Mr. Wolfman had said in court papers that overturning Citizens United was the “key to taking back our democracy from corporations and special interests.”
Judge Kaplan said in court on Jan. 19, “There are a lot of people in this country who share the plaintiffs’ view of Citizens United,” but even if there were not, Mr. Wolfman and his colleagues have every right to protest the decision and work for its reversal.
He said an e-mail chain between Mr. Wolfman and Mr. French established that a reasonable alternative protest site is in the area on the sidewalk in front of 40 Foley Square, the Thurgood Marshall U.S. Courthouse, where no permit would be required.
The current plan for Occupy the Courts on Jan. 20 is to muster in Zuccotti Park, the epicenter of the Occupy Wall Street protests, and march some 12 blocks uptown to Foley Square and conduct a demonstration there, just one day shy of the two-year anniversary of the Citizens United decision.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.