Mara Verheyden-Hilliard is executive director of the Partnership for Civil Justice Fund. Carl Messineo is the group’s legal director.
For the first time, the U.S. government wants demonstrators to pay to use our parks, sidewalks and streets to engage in free speech in the nation’s capital. This should be called what it is: a protest tax.
This is a bold effort by the Trump administration to burden and restrict access to public spaces for First Amendment activities in Washington. If enacted, it would fundamentally alter participatory democracy in the United States.
Last month, Interior Secretary Ryan Zinke announced the administration’s radical, anti-democratic rewriting of regulations governing free speech and demonstrations on public lands under federal jurisdiction in Washington. Under the proposal, which is open to public comment, the National Park Service (NPS) would charge protesters “event management” costs. This would include the cost of barricades and fencing erected at the discretion of police, the salaries of personnel deployed to monitor the protest, trash removal and sanitation charges, permit application charges and costs assessed on “harm to turf” — the effects of engaging in free speech on grass, as if our public green spaces are for ornamental viewing.
And it goes beyond just the Mall. Want to protest in front of the Trump hotel on Pennsylvania Avenue? Under this proposal, you’ll have to take out your checkbook, because the NPS maintains control over the broad sidewalks of Pennsylvania Avenue. In addition to the upfront costs to even request a permit, you may be billed for the cost of barricades erected around the hotel — fencing you didn’t ask for but that the hotel wants.
Such a “pay to protest” plan will probably be challenged in court. The right to petition the government for a redress of grievances cannot be burdened by such charges. And discretionary fees or measures that can serve as a proxy for content-based discrimination are unconstitutional.
This is just one element of a larger initiative to close off public space to silence dissent by both financial and physical restriction. The NPS has, at the same time, quietly sneaked into its new regulatory proposal a plan to essentially close the iconic White House sidewalk to protest, leaving only five feet for a narrow pedestrian walkway.
During the Vietnam War, the Nixon White House was surrounded by buses to block protesters from approaching the sidewalk. Now, the government seeks to remove the protests by taking the public spaces out from under our feet. What’s next, closing Lafayette Square?
The NPS describes our democratic rights as too costly for our democracy. An NPS spokeswoman justified the measure as cost recovery, pointing to last year’s Women’s March as having imposed “a pretty heavy cost” on the government.
Free speech is not a cost. It is a value. It is a fundamental pillar of democracy.
It also costs money to hold elections, to print ballots, to open and staff polling places. Yet we have recognized and rejected poll taxes as anti-democratic methods of voter suppression. Charging for protest is no different.
The NPS cloaks this new effort to stifle free speech by claiming that demonstrations burden the agency’s resources. But its own figures demonstrate that the number of permits for protests is dwarfed by permits for corporate entities that use public lands in Washington for commercial purposes, including movies and “special events.” If the agency needs additional funds and Congress won’t appropriate them, why not increase charges to such for-profit applicants to avoid infringing on constitutional rights?
The NPS does not own our public lands. It is not a wealthy landowner letting us walk on its manicured lawns. It is the steward of lands that belong to the people of the United States for the use of the people.
The Supreme Court has made this abundantly clear. As it ruled in 1939: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”
The Mall, the White House sidewalk, Lafayette Square and other federal lands are the historic soapbox for those who come to our capital demanding change. The NPS has set a plaque in the Lincoln Memorial steps where the Rev. Martin Luther King Jr. challenged Jim Crow apartheid and proclaimed his dream for a bold vision of our future. Had the Trump administration’s plan been in place 55 years ago, that historic call for freedom and equality might never have happened. We can say with certainty that the cost to our society of stifling dissent is far greater than any operating expense the NPS can claim.