Federal Appeals Court Asked to Stop Mayor de Blasio’s Restriction on First Amendment

(New York – May 21, 2020) – Late yesterday, the American Freedom Law Center (AFLC), a national public interest law firm, filed an emergency motion for an injunction pending appeal in the U.S. Court of Appeals for the Second Circuit against New York City Mayor Bill de Blasio and his police commissioner.

The AFLC-filed motion asks the federal appellate court to immediately reverse Judge Denise Cote’s recent order refusing to issue an immediate injunction forbidding Mayor de Blasio and the New York City Police Department from preventing public group protests in the City.

The underlying lawsuit, which was filed on behalf of political activist Pamela Geller, challenges Mayor de Blasio’s recent announcement that, pursuant to his executive orders, the First Amendment no longer applies in the City of New York as he has made it unlawful to peaceably assemble and protest.

Immediately after filing the lawsuit, AFLC filed a motion seeking a temporary restraining order and preliminary injunction to permit organized public protests that abide by social distancing and face mask requirements.  Oral argument was heard on that motion last Friday via videoconferencing, but the judge refused to grant the injunction.  On Monday, the judge issued her order denying the TRO and entered a final judgment dismissing the lawsuit so AFLC could file an expedited appeal on behalf of Ms. Geller.

Ms. Geller is an author, a conservative blogger, and champion for the First Amendment.  In addition to successfully challenging government restrictions on free speech in New York, Washington, D.C., Philadelphia, and Seattle, she organized the successful public protest of the Ground Zero mosque construction in Lower Manhattan.

But for Mayor de Blasio’s suspension of the First Amendment, Ms. Geller would organize and participate in a public protest of de Blasio’s anti-Jewish bias and against his policies, including the draconian restrictions he has imposed upon fundamental liberties during the COVID-19 pandemic.

De Blasio and the police commissioner have taken the position in this lawsuit that individuals acting alone may protest in public.  What they cannot do, even if they are careful to observe social distancing requirements, is protest as an organized group.  This, of course, renders the protest of one meaningless.  Not surprisingly, it is evident that Mayor de Blasio wants to silence effective protests against his irrational and tyrannical edits.

As set forth in the motion papers filed in the Court of Appeals yesterday:

Defendants’ assertion that organized public protests are more harmful than other permitted activity (i.e., if the same number of people are incidentally on the public streets and sidewalks at the same time cycling, walking their dogs, or even protesting as individuals) is not based on any hard facts or science.  Rather, it is based on speculation.  For example, Defendants speculate that protestors will be ‘chanting and yelling,’ which will then cause a greater spread of respiratory droplets.  But Plaintiff never claimed she was planning a ‘chanting and yelling’ protest.  Even if a group protest called for chanting and the like, are individual protestors acting independently of one another less likely to chant and yell?  Do Defendants demand silence from all those who go out in public?  Anyone involved in sponsoring protests or policing them knows that an organized protest is more likely to maintain the requisite etiquette than a large number of independent protestors.  And moving beyond protestors, do joggers and others exercising strenuously in public not present a similar likelihood of heavy breathing and expectorating?  In stark contrast to Defendants’ naked claims of the risk posed by group protests, Plaintiff’s protest will involve the use of signs, particularly since the protestors will be wearing masks, which makes it impractical, if not impossible, to chant or yell.

AFLC Co-Founder and Senior Counsel David Yerushalmi commented:

“Mayor de Blasio and his police commissioner have decided to criminalize effective organized public protest by claiming it is a public health risk.  This is a classic authoritarian power grab and precisely one the Constitution does not permit.  The lower court simply acquiesced to the Mayor’s parade of horribles, turning its back on the First Amendment.  We are hopeful the federal Court of Appeals will take a more judicious and penetrating look at the actual evidence and apply a modicum of logic and commonsense.”

AFLC Co-Founder and Senior Counsel Robert Muise added:

“This pandemic has exposed the true desire of progressive liberals to be tyrants.  Conservative-led Red States are opening and progressive-led Blue States are shut down like Communist China.  Ever since our founding, America has rejected tyranny and refused to abide by a king.  Today, more than ever in my lifetime, our resolve for freedom is being tested.  As Patrick Henry famously stated, ‘I know not what course others may take; but as for me, give me liberty or give me death!’  We too must have the resolve of our Founders to reject this new tyranny which has risen from the shadows of this pandemic.”

The parties have agreed to an expedited briefing schedule with final papers to be filed no later than Friday, May 29, 2020.