After Boston Common Protest, NEFAC Calls on City to Better Balance First Amendment Rights with Security Needs

FOR IMMEDIATE RELEASE
CONTACT Justin Silverman | 774.244.2365 | justin@nefac.org

The New England First Amendment Coalition believes certain restrictions in place during the recent Boston Common protest unreasonably interfered with the right of journalists to cover a story of immense public interest. The restrictions may have also violated the First Amendment right of Americans to express themselves in offensive, even hateful, ways.

Specifically, journalists should not have been banned from the Parkman Bandstand, where a controversial rally occurred on Aug. 19 and accommodations should have been made for close-up press coverage of the speakers as is usually done at public events. In addition, comments made by city officials indicate an intent to use an unusually large buffer zone to prevent supporters of the rally from expressing offensive views.

NEFAC is calling on the City of Boston and its law enforcement leaders to revise their policies for future assemblies to better allow speech – however offensive – to be heard by the public, particularly by those in the media. The coalition provides several suggestions below that if followed would help protect First Amendment rights in Boston, an historic bastion of free speech, while also preserving the ability of police to prevent violence. In summary, those suggestions are:

• City officials should make reasonable accommodations for close-up media coverage of public events and should avoid outright media bans.

• Journalists should scrutinize all restrictions on press access and promptly challenge them when necessary.

• Any security measures imposed by the city should be for the sole purpose of preventing violence and not, even in part, to prevent certain messages from being shared. 

More than 30,000 demonstrators assembled on the Common in response to the self-described “free speech” rally that at one point included speakers with white nationalist perspectives. This largely peaceful counter-demonstration occurred just a week after violence and death marred protests in Charlottesville, Virginia.

To help prevent similar violence between the rally speakers and protesters in Boston, city officials created a barricaded buffer zone between the two groups. This area was about 40 yards wide and surrounded the Parkman Bandstand where the rally occurred. Police denied all journalists access to this buffer zone and the bandstand area.

Boston Police Department Commissioner William Evans later said this separation was intended in part to make it more difficult for additional speakers to join the rally. “That’s a good thing because their message isn’t what we want to hear,” The Boston Globe quoted Evans as saying.

Since the rally, additional context has been reported: Many of the 33 people arrested during the demonstrations are accused of acting violently or posing an imminent threat of violence. Rally organizers have acknowledged that despite being permitted to use a sound system, they did not bring one and could not amplify their voices beyond the buffer zone. And some journalists are now, in hindsight, reconsidering their acquiescence to a media ban announced two days prior to the rally.

This context is significant as it helps illustrate the city’s competing interests and the difficult constitutional balance between maintaining security and protecting First Amendment freedoms. As the national political climate remains divisive and tense, additional rallies and protests like those that occurred in Boston will likely be held elsewhere.

While NEFAC is pleased with the lack of violence in Boston, there are still lessons to be learned and changes that need to be made.

PRESS ACCESS

(1) Journalists should be provided close-up access to public areas where speakers assemble. Credentials could be requested to distinguish would-be protesters from reporters. Reasonable accommodations should always be made instead of outright media bans. Even pool coverage could be allowed if there is limited space.
 
(2) Media organizations should consider any restriction on press freedom with the utmost scrutiny and never take access for granted. Unreasonable restrictions on the press should be challenged promptly and aggressively.

In a memo sent to news organizations two days prior to the rally, Boston city officials announced that media restrictions would be imposed “due to increased public safety concerns.” One restriction would be that “no media personnel will be allowed inside the barricaded area around the Bandstand.”

While it’s understandable that most journalists assumed rally organizers would be using a sound system and could be heard despite the buffer zone, the city still imposed a policy that should have been more strongly and swiftly challenged. The restriction was unnecessary and it deprived journalists the opportunity to fully report a story of national significance. Reporters would have posed no threat to the rally speakers and the buffer zone would have protected the press from any violent response by those on the Common.

The decision to ban media from the bandstand became even more consequential after the rally organizers failed to provide a sound system to amplify their voices. After about 45 minutes their rally ended with most of those on the Common having not heard a single word they spoke. Because of the media ban there is little definitive record of what message, if any, was shared and by whom.

As NEFAC board member and media attorney Robert A. Bertsche told The Boston Globe: “I believe that Bostonians as a whole are strong enough to hear such a message and still soundly reject it, proving that hate has no power here.” With no journalists to bear witness at the bandstand, Bostonians didn’t get the opportunity.

SUPPRESSION OF SPEECH

(3) All security measures should be taken with the sole purpose of preventing violence and not, even in part, to prevent certain messages from being spoken or heard. Officials should avoid any perception that actions taken to prevent violence are also designed to prevent speech.

Under the First Amendment, law enforcement must not act in a way that endorses or favors one type of speech over another. If any restrictions on speech or assembly are needed – such as a large buffer zone – they can only be imposed if content-neutral. While the unusually large size of the buffer zone could have possibly survived a legal challenge by itself, NEFAC believes the comments of city officials point to an intent to curtail offensive speech that would not pass constitutional muster.

According to The Boston Globe, Commissioner Evans said the buffer zone was partly created to prevent additional speakers and news media from assembling at the bandstand to spread a message he didn’t want heard. Leading up to the rally, Boston Mayor Marty Walsh cautioned against “interacting with these groups” and giving them a larger platform to “spread their message of hate.”

While city officials are allowed to exercise their own right to free speech, they are not entitled to act in a way that purposely suppresses the speech of others. As Justin Silverman, NEFAC’s executive director, recently told The Washington Post, “When that speech is racist or anti-Semitic, it’s easy to accept that suppression. But we shouldn’t.”

The First Amendment requires the protection of speech no matter how vulgar or offensive. If there were additional speakers looking to express themselves or journalists trying to cover what was said, they should not have been prevented from doing so based on a message Boston city officials didn’t want shared.


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.

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