Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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In response to a request by two organizers, Majority Camp and SHA’AL Educational Projects, to hold a public demonstration in Tel Aviv, the police commissioner of Israel demanded several conditions to be met before granting a license to protest. It specifically required the organizers to deploy dozens of private security personnel in order to ensure public order and to also have ambulances and fire trucks present during the time of demonstration. Upon complying with the demands and holding the demonstration, the organizers brought a petition before the country’s Supreme Court against the Israel Police, Tel Aviv Municipality, fire extinguishing authorities, and Red Magen David, the Israel’s national emergency service. They argued the financial burden of complying with those conditions violated their rights of assembly and freedom of speech.
The Court held that the Israel Police are under the positive duty of providing security and maintaining public order during public demonstrations and therefore, are not authorized to shift this responsibility to those who seek to exercise their right to demonstrate. The Court also held that the law on Red Magen David does not authorize the Police to demand payment from organizers for their mere presence during a demonstration. With respect to fire extinguishing services, it ruled that it is the obligation of local authorities to provide the cost of such services.
Majority Camp and SHA’AL Educational Projects (petitioners) sought to hold a demonstration that would span from Rabin Square to Dizengoff Square in Tel-Aviv in support of the government’s plan of disengagement from the Gaza Strip. Initially, the police commissioner of Israel refused the petitioners’ request, citing transportation issues. After negotiations, the police agreed to give a license to hold the demonstration, but made the granting of the license subject to many conditions, including:
“building a front command room for the use of the police at Dizengoff Square and connecting it to a telephone line and electricity, erecting a loudspeaker system throughout the procession route and connecting it to the police front command room, erecting three closed-circuit screens, cordoning off various areas by means of many dozens of cordon fences, deploying dozens of security personnel from a security company and dozens of organizers for ensuring security and public order, announcing the event in the media with details of traffic arrangements and the prohibition of bringing weapons, erecting signs prohibiting the parking of cars in the area of the demonstration, distributing pamphlets to the residents of the area about the traffic and parking arrangements, having towing vehicles present to remove cars from the area, and making arrangements with a parking lot for the towed cars; and having ambulances and fire engines present in case of emergency.” ((HCJ 2557/05 Majority Camp v. Israel Police  (2) IsrLR 399, at 402.))
Petitioners assessed the total cost of these requirements around NIS 300,000 (approximately $70,000). Following their opposition to comply with the demands, the police waived most of the conditions but refused to waive their responsibility to provide security personnel, ambulances, and fire trucks.
Upon further refusal, the petitioners complied with the remaining demands and held the demonstration in Tel Aviv. Despite this, they submitted a petition to the Supreme Court of Israel against Israel Police, Tel Aviv Municipality, fire extinguishing authorities, and Red Magen David (respondents). The petitioners alleged that the financial obligation involved in maintaining the security and safety of others during the demonstration in effect violated their fundamental rights to assemble and freedom of expression.
On the basis of Section 84 of the Police Ordinance, district police commissioners have made general proclamations upon which “anyone who wishes to organize or hold a procession or a meeting in an open place must obtain a permit.” ((HCJ 2557/05 Majority Camp v. Israel Police  (2) IsrLR 399, at 402.)) Additionally, Section 85 of the Ordinance allows the commissioner to “grant the license subject to a guarantee or on conditions or with other restrictions that he thinks fit to require, and the conditions and restrictions shall be stated on the license . . .” ((Id. at p. 406-407.))
The first issue before the Supreme Court of Israel was whether Section 85 can be a lawful source, authorizing police to issue demonstration license subject to conditions as demanded in the instant case that impose significant financial burden on organizers.
First, the Supreme Court recognized the importance of the rights of demonstration and expression; it emphasized that the freedom of speech “is the ‘essence’ of democracy – a basic right that is also a supreme principle in every democratic system of government.” ((Id. at p. 408.)) Similarly, the right to demonstrate and hold processions “is an inseparable component of the right to freedom of speech. It constitutes one of the main ways of expression opinions and raising social issues on the public agenda.” ((Id.))
Whether the right to freedom of speech is a constitutional right in Israel, the Supreme Court reiterated its understanding that even though the “Basic Law: Human Dignity and Liberty” was enacted in 1992, there is not express mention of freedom of speech. Rather, freedom of speech has been deemed by the Supreme Court as a part of the the framework of the rights and liberties protected by [the law], and it thereby gives the freedom of speech the status of a constitutional right. ((Id. at p. 409.)) But, according to the Court, not all aspects of the rights are constitutionally guaranteed. The protection applies only to “those aspects that are derived from human dignity and are closely related to ‘those rights and values that lie at the heart of human dignity, as expressing a recognition of the autonomy of the individual will, the freedom of choice and the freedom of action of the individual as a free agent.’” ((Id. at p. 409 (quoting HCJ 6427/02 Movement for Quality Government in Israel v. Knesset , at para. 41.).))
Directly relevant here, the Court then discussed two main obligations of the government with respect to the rights of assembly and expression. The government’s negative obligation prohibits it from violating the rights, such as placing unreasonable restrictions on the full enjoyment of the rights. It also has a positive duty to protect the rights. And the “significance of the positive duty is reflected in the duty of the state, within the limits of reason and taking into account the means available to it and the order of priorities determined by it, to allocate the resources that are required in order to allow the realization of the right of freedom of speech and demonstration.” ((Id. at p. 411.)) This duty, according to the Court, consists of “providing security and maintaining public order during the demonstration.” ((Id.)) And the main body of the government in this respect is Israel Police as Section 3 of the Police Ordinance provides that police “shall engage . . . in maintaining public order and security for persons and property.”
Accordingly, the Court ruled that law enforcement authorities “are not entitled to pass the responsibility for security and maintaining public order at demonstrations, in whole or in part, to the persons who wish to realize their right to demonstrate.” It added that the financial burden as result of passing such obligation to demonstrators prevents their ability to realize their fundamental right to demonstrate. The Court, however, underscored that the right to freedom of expression is not absolute and that police in assessing a request for demonstration may take into account the availability of its resources sufficient to maintain security. In other words, if a police commissioner “is unable to allocate the forces required to maintain public order, he may make the demonstration conditional upon restrictions of time, place and manner.” ((Id. at p. 416.))
The second issue for the Court was whether the police had the authority to make the license at issue here conditional upon organizers to provide ambulances and fire trucks in case of emergency during the demonstration. The Court held that providing those services is not among the natural functions of the police. Yet it further discussed whether Magen David Adom and the fire extinguishing authorities can lawfully demand payment from organizers for their services. Section 7A of the Magen David Adom Law authorized the institution “to charge whoever received from it services that are provided under this law or his insurer a fee in an amount that shall be determined by the Minister of Health and the Minister of Finance.” But the Court held that authority to collect payment only concerns “emergency transport” in an ambulance, and it does not provide further authority to charge for their mere present during a demonstration.
With respect to the presence of fire trucks and the demand of payment, the Fire Extinguishing Law of 1959 provide that the “recipient of service” must pay for services provided by a fire extinguishing authority. The Fire Extinguishing Services Regulations further defines the recipient “as the owner or occupier of a property in which, or for whose protection, the fire extinguishing operation was carried out, or who received a lifesaving service for himself or for a family member.” Applying to the present case, the Supreme Court held that the right to hold a demonstration is not property and because “the local authority is responsible for maintaining the public areas within its boundaries,” it is the is the responsibility of Tel Aviv Municipality to pay the cost of the fire extinguishing services that were provided in this case. ((Id. at p. 422))
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This decision expands freedom of expression by holding that limitations which over burden the right to protest are impermissible because the state and not the protesters are responsible for maintaining a certain level of public safety.
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