by Chris Potter
The ACLU may be headed for a confrontation with the state's Department of Conservations and Natural Resources, thanks to the agency's policies regarding political activity at Point State Park.
Vic Walczak, the ACLU's state legal director, tells CP that he has heard complaints from Green Party political activists who have been around the park in recent days, handing out literature and seeking petition signatures. The activists say they were approached by police, who told them to knock it off or face a citation or arrest. In a June 7 letter to park manager Frances Stein, Walczak charged that the ACLU
has recieved several complaints ... that you have called the Pittsburgh police and together with them threatened to cite and/or arrest people who are distributing literature or circulating petitions on the sidewalks surrounding and inside Point State Park. We write this letter to advise you that such a restriction on political activity, be it on a sidewalk or in the park, violates the First Amendment, and that if we receive even one more complaint we will immediately seek relief from a federal judge.
At first, the letter seemed to do the trick: Since sending it, Walczak says, he has heard no further complaints from activists.
But then the state sent Walczak a reply ... and now he has a complaint of his own.
On June 10, DCNR chief counsel Kimberly Hummel wrote back to Walczak, asserting that park officials had to juggle a wide number of divergent uses, and "the management of ... activities at urban parks such as Point State Park is particularly important." The letter went on to say that while leafletting and other such activitiy is permitted, the activists "did not comply with the regulations" because they
did not provide an application to the park office for permission to carry out [their] planned activities or provide copies of the materials to be distributed. Given the nature of your client's activites, permission would have been granted for the activity [but] the State Park staff had not received any notice of the activites in which your client intended to engage.
Hummel gave the activists "permission to engage in the requested activity at Point State Park. However, your client should provide proper notice to the park office ... so the park staff has notification of the nature of the activities that will occur as well as their time and place."
Hummel also thoughtfully included a copy of state regulations governing "organized events; public assemblies [and] distribution of printed matter." According to those regulations, "a copy of any printed material to be distributed shall be delivered to the park manager" in advance.
Walczak described himself as "flabbergasted" by the regulations, which he had not previously been aware of.
Sure, prior to the G20, the ACLU had fought with city officials on behalf of clients who wanted to use the park for political activity -- but those were organized, multi-day events. At issue here was a handful of activists engaging in one-on-one political discussion.
And yeah, for many years, Point State Park could have served as the backdrop for a remake of Footloose: The park long had prohibitions against cycling, and other leisure activities. But while those rules are merely "silly," Walczak says, "what we're talking about here is First Amendment activity" -- political speech. He objects especially to the provision requiring prior approval from park officials for activities like leafletting. "That's prior restraint -- 'you have to clear it with us first'," he says-- and Constitutional law does not look kindly on that.
Walczak surmises that the Park enforces these regulations only when other events -- like the ongoing Arts Festival -- are taking place. But he says a 2008 federal court decision establishes that counterprotests or other political activity can be barred only if itconstitutes a disruption.
In that case, the Third Circuit Court held that Philadelphia police were right to prevent fundamentalist Christians from protesting at a gay-pride event -- but only because the protest was so disruptive that it infringed on the rights of gay people to speak.
"When protesters move from distributing literature and wearing signs to disruption of the permitted activities, the existence of a permit tilts the balance in favor of the permit-holders," wrote federal judge Dolores K. Sloviter.
Explicit in that reasoning, says Walczak, is the idea that distributing literature and wearing signs should be permitted unless it IS disruptive. In a case like this, he says, there's no reason an event like the Arts Fest should be able to squeeze out other non-disruptive activity.
The Arts Festival ends this weekend, and Walczak says the ACLU is "on a hair-trigger" should it hear of future attempts to curtail free-speech activity. Even if nothing more happens, he says, "we will likely write back to the [DCNR] and advise them of the various ways their regulations violate the Constitution. And we'll suggest that they change it -- or we'll be happy to help them out with that ourselves."