NJ Town's Plan To Charge People For Protesting Is Off The Table – For Now

WEST CALDWELL, NJ — A controversial proposed law that would require protesters to pay if they want to hold a demonstration in West Caldwell is off the table – for now.

The West Caldwell Town Council was scheduled to vote on Ordinance 1898 at their meeting on Tuesday evening. The proposed local law would regulate several types of public gatherings in the township, including protests, block parties and other special events.

Demonstrators would have to pay the township a permit fee and agree to reimburse West Caldwell for “any reasonable and foreseeable expenses,” including police service, setup and cleanup costs. They would also be required to have $2 million in liability insurance and notify the township at least 30 days before the rally.

The proposed law is drawing some heavy criticism from multiple civil rights groups, including the ACLU-New Jersey, which claims it is unconstitutional and treats the First Amendment as a “privilege to be bought” – rather than a “right to be enjoyed.”

This concern was shared by some people who spoke at Tuesday’s meeting – and the council has taken note, West Caldwell Mayor Joe Tempesta told Patch.

“The ordinance was not voted on last night, but rather tabled until further notice,” Tempesta said Wednesday.

“We received input from a number of people attending the meeting along with additional correspondences and e-mails,” the mayor added. “I have asked the governing body to take their time and review all of the comments and materials, as well as discuss our options with our attorneys.”

WHAT WOULD THE LAW DO?

The ordinance would make several changes to Chapter 22 of the West Caldwell township code, including the section that regulates protests.

Here’s how a “demonstration” is defined under the proposed law:

“The gathering of 25 or more persons for the purpose of demonstrating, picketing, speechmaking, marching and the holding of vigils, and such other gathering as may be protected by the First Amendment to the United States Constitution and the New Jersey Constitution, where such gathering is to be held upon public property. This definition shall not include any gathering or activity that is prohibited by the First Amendment to the United States Constitution and New Jersey Constitution.”

Demonstrators would need to submit a permit request no less than 30 days before the protest, although town administrators would be able to carve out exceptions for “exigent” cases. The final decision would rest in the hands of the mayor, township administrator or their designees after a consultation with department directors.

The ordinance would allow the township to charge an application fee to the people organizing the protest. Each applicant must also agree in writing to reimburse the township for “any reasonable and foreseeable expenses” incurred from the demonstration, including police service, setup and cleanup costs.

The organizers must also have comprehensive liability insurance which names the “Township of West Caldwell, its officers, employees, elected officials and agents” on the policy or by endorsement as additional insured. Policies must cover $2 million in general liability, $2 million in auto liability and the statutory requirements for workers’ compensation.

Some other highlights of the proposed ordinance include:

No Discrimination – “In granting or denying permits, the township will not discriminate on the basis of age, gender, race, creed, religion, national origin or sexual preference, the content of the speech or the identity of the speaker(s).”

Exemptions– “Events which are cosponsored by the Township of West Caldwell are exempt from the provisions of this section, as are funeral processions, school-sponsored events and any governmentally sponsored events.”

Emergency Vehicles – “Public property authorized for use in connection with any event shall not be obstructed by obstacles which cannot be readily moved to allow the passage of emergency vehicles, and events shall not unduly interfere with movement of emergency vehicles and emergency services to contiguous areas.”

School Schedules – “An event shall not be scheduled at a time when school is in session, when such event is located near a route or location adjacent to a school or class thereof without approval of the West Caldwell Superintendent of Schools, and the noise created by the activities.”

Public Safety – “The conduct of the event shall not negatively affect or impair public health, welfare, and safety.”

Hours– “The hours when … demonstrations will start and terminate … shall not be before 8 a.m. or after 10 p.m.”

Vehicles – “No vehicles shall be driven or used as part of a demonstration.”

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The township’s proposed law has set off alarm bells at the ACLU-New Jersey, which urged the council to withdraw the ordinance from a potential vote this week due to “several serious constitutional infirmities.”

According to the ACLU-NJ, the ordinance would regulate events that take place in public places that have traditionally been crucial to free speech rights, such as streets, sidewalks and parks. The government has had very limited ability to restrict First Amendment activity in these places.

The civil rights group also criticized the reimbursement requirements of the law, which they called “glaringly unconstitutional.”

Security and maintenance services are basic public functions – and the town doesn’t have a right to charge protesters for police protection, the ACLU-NJ argued.

“What’s more, reimbursement policies of the type found here are particularly offensive to the First Amendment because a permit applicant who agreed to it would have no way of knowing the scope of the liability to which it might be subjecting itself,’” advocates added.

Permit applicants would essentially be required to hand over a blank check before speaking – an “unconstitutional chilling of speech,” the ACLU-NJ said.

“Organizations with modest budgets or groups of loosely affiliated individuals united by shared values have an affirmative right to assemble and speak; that right cannot be confiscated based on an inability to afford police fees, cleanup costs, and other unspecified, unquantified and unknowable expenses,” the nonprofit said.

Advocates also criticized the insurance requirements of the proposed law, saying that they are routinely struck down in the courts.

“As an initial matter, the requirement operates as a de facto ban on speech for any group unable to afford the insurance, and the ordinance contains no exception based on financial burden,” the ACLU-NJ said. “It thus violates the bedrock principle that free speech must be “available to all, not merely to those who can pay their own way.”

Some speakers may be unable to secure an insurance policy simply because underwriters are unwilling to offer them one based on their political beliefs and the risk of negative publicity, the group added.

Other criticisms included the 30-day advance notice requirement – which isn’t constitutional even with the “exigent” exception clause, the ACLU-NJ claimed.

“The ordinance is unconstitutional and should not face a vote,” advocates concluded. “Fundamentally and fatally, it ‘treats the First Amendment as a privilege to be bought rather than a right to be enjoyed.’”

The Foundation for Individual Rights and Expression (FIRE) also blasted the proposed law, claiming that West Caldwell residents will “suddenly find themselves burdened by red tape, insurance requirements, curfews, and financial penalties, just for continuing to do what they’ve already been doing: speaking freely in public.”

“The First Amendment doesn’t come with a price tag,” the group wrote in an online petition. “Let’s protect the right to speak, gather, and protest, before it’s buried under red tape.”

• See Related: 'Know Your Protest Rights': New Jersey ACLU Shares Tips For Activists

The Caldwell area has seen repeated protests against President Donald Trump’s administration since he was inaugurated for his second term.

A rally was held against the Trump administration in West Caldwell on May 1 in commemoration of International Workers’ Day, also known as “May Day.”

Other local demonstrations have included a “No Kings” protest that took place in June along Bloomfield Avenue in Caldwell. Other nearby rallies took place in Bloomfield, Glen Ridge, Newark, Montclair and South Orange.

Opinions about the local protest were heavily split along ideological lines, with many residents of the Caldwells saying they supported the demonstrators – and others saying they were opposed.

“We the people elected a strong America First leader and that's exactly what we got,” a North Caldwell resident told Patch.

• See Related: Caldwell Residents Rally At 'No Kings' Protest: 'Justice For All'
• See Related: Labor Day Protest Planned In Caldwell: ‘Workers Over Billionaires’
• See Related: ‘Good Trouble’ Rally In Caldwell Will Protest Trump, Honor Civil Rights Icon

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