Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Mixed Outcome
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The Constitutional Court of Georgia struck down the provision of the Administrative Offences Code of Georgia that prohibited the temporary placement of placards, slogans or banners on private property viewable to the public during a spontaneous protest. The Georgian activists – Besik Katamadze and two others were charged by the Ozurgeti District Court with damaging the appearance of the municipality after they displayed the banner – “LYING GOVERNMENT” from the roof of a building, in protest against the Georgian Prime Minister while he was visiting the city of Ozurgeti, Georgia. The Constitutional Court of Georgia ruled that as long as the owners of the private property give their consent, a short-term change in the appearance of the building or surrounding area cannot outweigh the applicants’ right to protest. Thus, the prohibition was abolished. On the other hand, the Constitutional Court held that the ban on putting up the impugned objects on the City Council building was justified since no permission from the respective governmental body had been granted and municipal buildings should not be misused.
The applicants were Besik Katamadze and Ilia Malazonia – activists belonging to the local NGO “Free Zone” and David Mzhavanadze – a member of the opposition party in Georgia – “United National Movement”. The first applicant Besik Katamadze was later elected as a member of the local representative body – the City Council of Ozurgeti municipality.
On September 15, 2015, the applicants put up the banner – “LYING GOVERNMENT” on the facade of a privately-owned building to protest the visit of the Georgian Prime Minister to the city of Ozurgeti, Georgia. Consequently, the applicants were detained by police officers and the banner was torn off the building. On October 1 2015 the Ozurgeti District Court found the applicants guilty of “defacing the appearance of a self-governing unit,” an offense under Article 150 (1) of Administrative Offences Code of Georgia, according to which: “Making various types of inscriptions, drawings or symbols on building facades, shop windows, fences, columns, trees or other plantings without authorisation, also putting up placards, slogans, banners at places not allocated for this purpose, or leaving fences and buildings unpainted shall carry a fine of GEL 50”. However, given the fact that the applicants’ offense was a petty one and no material damage was done to the building, they were released from administrative liability and received only a verbal warning.
The applicants brought a claim in the Constitutional Court of Georgia arguing that paragraph 1 of article 150 of Administrative Offences Code of Georgia impairs their freedom of speech. In particular, the disputed law prohibits putting up placards, slogans or banners on private property even with the consent of the owner or by the owner himself/herself during a spontaneous protest. The applicants suggested that less restrictive measures were available, such as if the authorities granted individuals a reasonable time to remove the specified objects from the buildings rather than immediately tearing them off. Further, the applicants asserted that a member of the City Council should also be permitted to display a banner from a window of his/her office in the building of the Council since they hold elective office, represent their voters and usually convey a message from the wider society, which grants them a higher level of protection of freedom of expression.
The Parliament of Georgia argued that the prohibition was necessary to maintain the orderly and clean appearance of the municipality. Even a spontaneous or short-term placement of a banner, slogan or poster on the facade of the building could cause a public nuisance and breach the rights of other people. Moreover, the Parliament pointed out that the disputed law restricted only a specific form of expression, as the applicants were free to protest by means other than putting up the banners on the walls of buildings.
On July 4, 2019, the First Collegium of the Constitutional Court of Georgia delivered the judgment of the Constitutional Court.
The underlying issue before the Constitutional Court of Georgia was whether the prohibition of putting up placards, slogans or banners on the facade of private property by an owner (or with his/her consent) during a spontaneous protest complies with the paragraphs 1 and 5 of article 17 of the Constitution of Georgia.
Article 17(1) states that “freedom of opinion and the expression of opinion shall be protected…”. Article 17(5) permits restrictions on freedom of expression “only in accordance with law, insofar as is necessary in a democratic society for ensuring national security, public safety or territorial integrity, for the protection of the rights of others, for the prevention of the disclosure of information recognised as confidential, or for ensuring the independence and impartiality of the judiciary.”
At the outset of the judgment, the Constitutional Court of Georgia highlighted that placards, slogans, and banners may carry particular opinions/ideas and these objects are commonly used as a means of expression. Next, the Court emphasized that the facade of a building is a public space that can be used as a forum for expression. Thus, the law that prohibited the installation of banners and similar objects on the facade of the buildings amounted to an interference in the applicant’s freedom of expression.
However, the Court pointed out that the prohibition on putting up banners and similar objects on walls of the buildings open to public view pursued a legitimate aim. Namely, preserving the appearance of buildings which, considering their aesthetic and historical value, is an important public interest, and disregarding that might pose a threat to other inhabitants’ personal space, reduce property values in and touristic appeal of the area and, overall, lower the quality of life of the people. Accordingly, distorting/altering of the appearance of the buildings may affect the rights of others. Hence, the law furthered the legitimate aim of protecting the buildings and surrounding areas.
The Court did not concur with the applicants that providing protesters with a verbal warning and a time-frame for taking the objects down could be considered as a less restrictive means to achieve above-mentioned legitimate aim on the ground that such measures were less effective than the disputed law.
Next, the Court emphasized that the availability of alternative forms of expression did not justify the severity of the restriction on expression in the present case. Freedom of expression, among other things, means the freedom to choose the form of expression that a person considers the most suitable. Putting up the placards, slogans or banners on walls with the consent of the owner of the private property, might be one of the most convenient forms of expression since it is a relatively cheap and effective means to convey the desired message to the targeted groups.
Furthermore, the Court highlighted that timing is very important when expressing opinions concerning ongoing, critical events and any delay of a protest may diminish its effectiveness and undermine that very expression. At the same time, the Court noted that placement of banners, slogans or placards rarely results in any permanent damage to the facade of buildings. The damages related to the short-term change of appearance of the municipality are not serious enough to warrant a total ban on the spontaneous expression. Consequently, the Constitutional Court ruled that in a democratic society such a severe restriction of freedom of expression cannot be counterbalanced by a brief, temporary change of the appearance of a building or the municipality. Accordingly, the Court struck down the law that prohibited the temporary placement of the placards, slogans or banners with the consent of the owners on private property during a spontaneous protest.
In respect of the placement of banners, slogans or posters on the facade of a City Council’s building, the Court noted that members of the City Council are actively involved in the political process of the country and as the representatives of the people indeed enjoy the highest protection of freedom of expression. However, the office given to them in the building of the City Council does not mean they have permission to display objects on the facade of the City Council. The municipality has a special interest in ensuring that public resources are properly utilized. Therefore, the interest in protecting the freedom of expression of City Council members cannot outweigh the interest of self-governing bodies to protect their property from unjustified exploitation coupled with the interest in maintaining the appearance of the municipality. Thus, the Court ruled that the prohibition on placing banners, slogans and placards on the facade of the City Council building did not violate Article 17 of the Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment has a mixed outcome. On the one hand, it expands the protection of freedom of expression by allowing a person temporarily to install placards, slogans or banners on the facade of the private property during a spontaneous protest when there is consent by the owners. In other words, the Court gave less significance to short-term change of appearance of municipality in favor of spontaneous expression.
On the other hand, the judgment contracts freedom of expression as the Court concluded that members of the City Council are not allowed to display banners or similar objects from the window of their office in the City Council since there is an important interest in utilizing the administrative buildings appropriately.
This case can be compared with Bhatia v. New Delhi case, where the High Court of Delhi concluded that the unregulated placement of banners on private property amounted to public nuisance and its prohibition was justified under article 19 of the Constitution of India. See the case analysis at the following link: https://globalfreedomofexpression.columbia.edu/cases/anil-bhatia-v-government-of-national-capital-territory-of-new-delhi/
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Freedom of opinion and expression
Defacing the appearance of a self-governing unit
Case significance refers to how influential the case is and how its significance changes over time.
The judgment of the Constitutional Court of Georgia is self-executing. Once the Court holds the law unconstitutional the law ceases to exist from the date of publication of the judgment.
Let us know if you notice errors or if the case analysis needs revision.