News Analysis: New York City's Secondary Effects Problem

It's not that Mayor Michael R. Bloomberg wants to trample on anyone's free speech rights; it's the secondary effects of that free speech that he's worried about.

No, this time, it's not whether school kids have to walk past purposely tamed-down and blocked-out adult store windows. This time, it's whether too many people practicing their free speech in one place is bad for the grass.

As the New York Times noted in an editorial on Monday, the mayor is arguing that anti-war and other protesters should not be allowed to gather on the "Great Lawn" – 13 acres of open space at the southern end of Central Park – because all those marching feet are too heavy for a meadow-full of nature's most hearty plants.

Bloomberg, a Republican, got the idea, coincidentally enough, when organizers of a projected 100,000-plus group wanted a permit to rally on the Great Lawn in early September, 2004, to protest the Republican National Convention then being held in Madison Square Garden. The permit request was denied, not because Bloomberg wanted to squelch criticism of his party's convention; that would be illegal under a whole stack of Supreme Court decisions. Instead, Bloomberg cited the cost of replacing the sod which the city and wealthy park neighbors had spent millions to install, which, Bloomberg claimed, would be irreparably damaged by the collective trampling of the marchers.

In other words, the classic "secondary effects" situation: It ain't the speech; it's the property values.

And like any adult business with moxie, the protest organizers – among others, United for Peace and Justice and International ANSWER – sued the Bloomberg administration for First Amendment violations, noting 1) that the City didn't seem to have any problems with the grass when the New York Philharmonic wanted to hold concerts on that same Great Lawn – noted the Times, "Classical music fans are just as capable of flattening grass as critics of the White House" – and 2) the plaintiffs had offered to post bonds that could be used to repair any damage caused by the protesters.

Of course, this case differs from those involving adult businesses, because A) no scientific studies of the effects of adult businesses on communities have indicated that the businesses harm either the residents or the property values of those communities, and B) the better-run businesses already police their surroundings to get rid of debris that the communities might find objectionable.

Even more telling, Bloomberg has argued that protesters who wish to make their voices heard could rally in Van Cortlandt Park in the upper Bronx, or Long Meadow in Brooklyn's Prospect Park – both several miles away from Madison Square Garden, where the objects of the protest were/will be located. Noted the Times, "It's an interesting suggestion from a mayor who wanted to build a professional football stadium right in Manhattan because he thought the other boroughs were too remote."

Gee; don't municipalities generally zone adult businesses to be as far away from their customers as possible? Must be another coincidence.

But will the City invoke the spirit of Renton v. Playtime Theatres to support its "Keep Protesters Off The Grass" permit policy? Only time will tell.