ACLU Forum On Protest Rights During the RNC in Tampa

UPDATED! See bottom of post for most recent updates


The Republican National Convention is coming to the city of Tampa in August, which will bring in Republican candidates for president, hundreds of political operatives and staff members, the Secret Service (which is already working with the city to secure the area for the event), and thousands of journalists, citizens and, of course, protesters.

In preparation for all this, the city of Tampa is drafting ordinances to regulate where protests can be held, for how long, what will be allowed during public gatherings...and what won't. There is understandably some concern from residents, activists and community groups about how restrictive these ordinances will be, and if they are constitutional or not. This is a very high profile event which will affect a large number of people living in and around Tampa and Pinellas County.

Some of the proposals causing the most concern include the following:

• The "Clean Zone" -  The area  in which protests and gatherings will be tightly controlled. This zone (as proposed) encompasses a large area, encroaching into neighborhoods and onto a part of the University of Tampa property
• The "60 Minute" rule - Protesters will have only sixty minutes to arrive, protest, then vacate the area. Anyone protesting (or in the area) after sixty minutes risks arrest
• Prohibited items - Items that will be restricted or banned include chains, knives, sharpened 2x4s, tripods, monopods and bipods, and water pistols...but, licensed firearms will be allowed
• A ban on masks - no masks will be allowed in the Clean Zone, which includes gas masks, protest masks, bandannas or even oxygen masks for those who require them
• Speech Restrictions - Restrictions on photography and videotaping of events

To discuss these issues, the ACLU hosted a forum at the Stetson University College of Law in Tampa, at which panelists consisted of the city attorney of Tampa,  Julianne Holt, an official from the Hillsborough County public defender's office, Stetson law professor Louis Virelli,  and Mickey Osterreicher, the general counsel of the National Press Photographers Association, who flew down from Buffalo, New York to attend this forum.

(image credit: wmnf 88.5 FM)

Also in attendance in the audience was the mayor of Tampa's chief of staff, the senior attorney for the Tampa police department, and several city council members, plus community activists and journalists.

I went to hear the issues being discussed; here are my notes, paraphrasing the main points of discussion. There are links at the bottom of this post that have more coverage of this important forum, which include video.

The ACLU's John Dingfelder moderated the forum and brought up some points for the panelists to discuss. The event was crowded, the attendees polite and respectful, but obviously interested in the issues being discussed.

Free Speech Zone

Dingfelder first brought up the free speech zones proposed by the city and asked how it would be regulated. The "Clean Zone" includes residential neighborhoods and housing complexes, extending to Ybor City, Channelside, Davis isle, Hyde Park, the Riverside area, as well as downtown Tampa

The city attorney Jim Shimberg answered cautiously; indeed most of his answers were very circumspect and non-specific, as the ordinances have not yet been approved by the city council. His response was that there were no absolutes, it was a balancing act, and the time/place/manner restrictions on protests had to balance the people's right to express themselves against the government's need to ensure security and safety, in a reasonable way.

Dingfelder then commented that the Clean Zone ordinance was eighteen pages long. What was Tampa's view on the reasonableness of this ordinance?

Shimberg answered that it had been created in consultation with other state/local governments who have enacted similar ordinances, the Secret Service and other groups he declined to mention.

Mickey Osterreicher, the general counsel of the National Press Photographers Association, pointed out that if the Clean Zone was too far away from the site of the convention, it would in essence defeat the purpose of protesting. He also stated that the government and the public may have different interpretations about what was reasonable, and that it is critical to document the activities during such events, because when police are interacting with the public, there can be wildly different interpretations of the same incident. 


From a recent New York Times editorial about this issue:
In the post-9/11 era, security has too often been an empty pretext for placing dissent out of eyesight and earshot. The manual for advance teams used during George W. Bush’s presidency designated protesters as a potential “security threat” if they were within the sight or hearing of the president — or the journalists covering his event. The manual instructed that demonstrators were to be relocated to a designated protest area not visible to journalists. (“If it is determined that the media will not see or hear them and that they pose no potential disruption to the event, they can be ignored,” the manual stated.) Source: Protecting Face-To-Face Protest by Ronald J. Krotoszynski Jr. 4/8/12

Drawing a chuckle from the crowd, Osterreicher also wryly mentioned that it was unlikely that monopods, tripods or even cameras would be used as weapons in the Clean Zone by photographers, making clear he felt such restrictions were dubious. Besides, in hectic events such as protests and parades, very few photographers used monopods or tripods, as it is not usually practical.

The 60 Minute Rule

The reasonableness of the 60 Minute rule was brought up by Dingfelder, and mentioned at various points throughout the debate. He specifically pointed out that the ACLU has never heard of a similar restriction enacted anywhere else in the country. The following questions were raised about this proposed ordinance:

• How reasonable was the 60 minute rule?
• Did it include the time it takes to get to the  protest/parade site?
• What happens if one  protest/parade ended in under 60 minutes, followed by another one? Would participants be allowed to spend some of their 60 minutes on the second  protest/parade without inviting arrest?
• What about persons who happened to wander over to see what's going on, and stayed to see a second  protest/parade, but were not part of the protest/parade itself?
• Did the rule cover people who live and/or work inside the Clean Zone?

City attorney Jim Shimberg's defense of the 60 Minute rule was brief, and focused on how long officers could wear heavy riot gear in August before having to cool down, offering that (and not much else) as a justification for the 60 Minute rule.

Stetson law professor Louis Virelli responded that the reasonableness (and legality) of the 60 Minute rule was "open to interpretation". Translation: there will almost certainly be court challenges to the 60 Minute rule, and the city must certainly know this. 

My friend who was with me asked if Republican National Convention participants and/or supporters would have to obtain city permits to assemble as well, and also be held to the 60 Minute rule, a question that prompted some clapping from the audience. Almost grudgingly, Shimberg answered that they would, unless the Secret Service dictated otherwise.

In my personal opinion listening to the debate, I suspect that Tampa knows the law will not pass constitutional muster but is going to enforce it anyway (assuming it is approved by the city council), sorting out the challenges after the Republican National Convention is over. By then, legal protests will have been suppressed, making whatever happens after the convention a moot point.

Prohibition of Masks

The ordinances would prohibit the wearing of masks anywhere in the Clean Zone, which includes residential neighborhoods and hosing complexes, extending to Ybor City, Channelside, Davis isle, Hyde Park, the Riverside area, as well as downtown Tampa. Wearing a mask may lead to arrest.

Dingfelder brought up a scenario: three people eating lunch at a restaurant while wearing (or carrying) masks would be a violation of section 8 of the ordinance, meaning being jailed for 60 days. Reasonable?

City attorney Jim Shimberg responded that context would make all the difference in whether an arrest would be made, including the environment in which the mask would be worn, essentially leaving it up to the individual police officer to make a judgement call.

Stetson law professor Louis Virelli wondered whether burquas would violate the ordinance. Burquas are a religious garment which conceals one's identity. Would that be allowed?

Julianne Holt, of the the Hillsborough County public defender's office pointed out that someone would have to be arrested first before the constitutionality of this ordinance is addressed, and the challenge may come fairly quickly; in fact she expects legal challenges on the first day.

She also pointed out that there are current laws which make wearing a mask during the commission of a crime illegal (such as armed robbery, rape or kidnapping) and she wondered if the law was too broadly written.

Osterreicher wondered what governmental purpose is being served by arresting three people having lunch because they happen to possess masks, and submitted that training is needed to avoid false and/or unnecessary arrests.

A woman who has breathing problems from her rescue efforts in New York City on 9/11 asked if medical exceptions would be made for breathing masks and people requiring oxygen tanks.

The city attorney did not respond.

Forbidden Items

This subject generated some laughter from the crowd. Chains, knives, sharpened 2x4s, tripods, monopods and bipods, and water pistols are all forbidden...but not licensed firearms. City attorney Shimberg, can you explain?

Shimberg was obviously uncomfortable with the question. His answer: state statutes prevented local governments from restricting firearms regulations. Thus, Tampa could not prohibit the carrying of guns (concealed or otherwise) to protests. The Tampa Bay Times has an article about this HERE.

The public is safe from the scourge of squirt guns and tripods, however.

One panelist (almost gleefully) pointed out that Republican-controlled legislatures realized too late the broad gun-rights legislation they had passed, which allowed anyone to walk into government buildings (including the Capitol) carrying guns. As a result, legislators had to install panic buttons in their offices in case someone went on a shooting spree.

The issue of the Stand Your Ground law was mentioned to clapping from the audience (especially relevant because of the case of Trayvon Martin), but Dingfelder of the ACLU demurred, saying there was not enough time to debate this particular issue.

Rights of Photographers

Mickey Osterreicher, the general counsel of the National Press Photographers Association addressed this issue at length. Osterreicher is a zealous advocate of the rights of photographers and sends countless letters to police departments around the country who have arrested and harassed photographers, reminding them of the law and their responsibility to allow photography. He has seen an increase in illegal police harassment of photographers of "epidemic" proportions, and expects the problem to get worse.

He made the following points:

• There needs to be some distinction made when police order crowds to disperse; in New York City the NYPD corralled all reporters with city-issued credentials to a remote area away from protests, while non-credentialed bloggers and photographers remained
• The press may not have any greater rights than the public, but they certainly have no less rights
• The police can essentially do whatever they want on scene; they have the badge and the gun, and they are going to win the argument until the legal issues are sorted out later, because they have the power of the local government behind them
• The police have absolutely no right to view, delete, or order the deletion of any photographic images without a warrant or other legal authority (such as a search warrant). This violates the Privacy Protection Act passed in 1980. If police order a photographer to delete images, the photographer can legally refuse
• Police do try to delete images, of course, in violation of the law, but because of the ability to instantaneously upload and publish images to the web, such images will inevitably be seen by the public anyway
• The police sometimes engage in "catch and release" practices - that is, arresting photographers and journalists regardless of whether it's legal or not. By the time subjects are freed, the goal of suppressing coverage of the event will have been achieved.

Response From Tampa Police Department

Kirby Rainsberger, the senior assistant attorney for the Tampa Police Department, expressed dismay at the general tone of the forum which painted the TPD as enemies of the first amendment. He insisted this was absolutely not true, that there was a lot of training being done, that TPD officers know their limits and will have guidebooks in hand during the convention, and that officers will absolutely respect and protect peoples' right to peacefully express themselves. He concluded by saying the TPD was on the side of the citizens.

Final Remarks From ACLU

Closing remarks were made by a confident and smiling Michael Pheneger, president of the ACLU Florida chapter, and a retired U.S. Army Colonel. He made the following closing points:

• Sometimes speech needs to be limited, but sometimes governments tend to be overly restrictive, because they can
• The 60 Minute provision has a lot of problems, such as the interaction of different events, transportation to/from events, and the size of the Clean Zone
• Police dressed in heavy SWAT gear will be psychologically expecting something to happen, making confrontations more likely. Officers dressed in regular uniforms will be less apt to initiate conflict because of the mindset the two types of outfits generate
• No one wants the kinds of images on TV that were seen in protests in other cities, and working with the city and its representatives can reduce or prevent the odds of this happening
• It took courage for city officials to attend this forum, and he thanked them for being part of the process

UPDATE: In response to the Tampa city council and critics of the proposals, the city of Tampa has made the following changes:

• The "clean zone" will now be called the "Event Zone", and will be much smaller
• The list of prohibited items has been scaled back drastically
• The sixty minute rule is out

The Tampa Bay Times has the story HERE

Links

WMNF 88.5 has excellent coverage of this forum, as well as videos so you can watch it yourself, in its entirely. Check it out HERE. 


The Tampa Bay Times has an article focusing on the gun restrictions, and other protest issues, HERE. The Times' editorial takes issue with some of the proposals; read the editorial HERE.


Protesters are speaking out against the restrictions; read about it HERE.


The New York Times has a good op-ed piece about the politics of regulating protest HERE.

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