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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The Federal Administrative Court of Germany decided that a protest camp and its infrastructural facilities both are subject to the protection of the right of freedom of assembly. In 2017, the claimants registered a protest camp (“climate camp”) as a public open-air assembly but were denied access to an additional plot to be used as an overnight accommodation area with tents and sanitary facilities. The Federal Administrative Court first found that the character of the “climate camp” as a continuous protest camp does not preclude its classification as an assembly protected by the Assembly Act and Art. 8 German Basic Law. Second, the Federal Administrative Court established that infrastructural facilities of a protest camp are subject to the direct protection of the right to freedom of assembly if they either have a substantive connection to the intended expression of opinion of the assembly or are logistically necessary for the concrete assembly (here: the protest camp) and have a direct spatial connection to it. In this case, the “climate camp” could not have been held without the infrastructure facilities on the additional plot, which was located in spatial proximity to the assembly areas. For these reasons, the Court concluded that both the “climate camp” and its infrastructural facilities are subject to the protection of the Assembly Act and the right of freedom of assembly.
In July/August 2017, the claimant registered a “climate camp” as a public open-air assembly with the Aachen police headquarters as the competent authority for assemblies. The camp was supposed to take place on a meadow for eleven days at the end of August 2017. The objective of the camp was to call attention to the destruction of established localities as well as of the environment and climate by the mining of lignite and the generation of electricity from it. For this purpose, circus tents, field kitchens, utility and event tents, a stage, loud speakers, generators and composting toilets would be provided. Moreover, space for tents to accommodate participants and for sanitary facilities would be provided. The organizers expected a maximum number of 6.000 participants.
In an order of August 14, 2017, the Aachen police headquarters confirmed that the “climate camp” would be regarded as an assembly. However, the police headquarters forbade the conduct of the assembly on the meadow which the claimant registered for. Instead, it assigned the claimant an area rented by the claimant (plot 55) and a sports field adjacent to this area as assembly areas. On the sports field, assembly participants were allowed to erect their overnight tents. The order was based on Section 15 (1) German Assembly Act, which reads as follows:
“The competent authority may prohibit the assembly or the procession or make it subject to certain conditions if, according to the circumstances discernible at the time of issuing the order, public safety or order is directly endangered when the assembly or the procession is held.”
After the sports field was occupied with sleeping tents of camp participants, the claimant released another rented meadow (plot 65), located at a distance of 800 meters from the other plot 55, as an additional area for setting up sleeping tents and sanitary facilities. Following a corresponding notification to the Aachen police headquarters on August 22, 2017, the police headquarters issued an order rejecting plot 65 as an assembly area. The police reasoned that from the point of view of assembly law, there was no legal basis for declaring the area, on which in fact no assembly was held, but on which sleeping tents and sanitary facilities were set up, as belonging to the climate camp, which was assessed as an assembly. In contrast to the sports field used in the same way, the plot 65 was not owned by the state and hence no confirmation under the law of assemblies could be granted.
On March 14, 2018, the claimant brought an action for a declaratory judgment that plot 65 as an overnight accommodation area was protected as an assembly under the freedom to assembly under Art. 8 German Basic Law (Grundgesetz, GG) and the Assembly Act respectively. The Aachen Administrative Court dismissed the action, because the plot was only used for an encampment overnight and thus not part of assemblies protected under Art. 8 GG: “the mere stay of persons in a camp for the purpose of accommodation and their intention to take part in meetings cannot in itself be seen as a collective formation of opinion and expression of opinion with the aim of influencing the formation of public opinion” [para. 23]. The court found that plot 65 was subject to the “upfront protection” (Vorfeldschutz) of the freedom of assembly which however meant that “for possible state measures in this regard – in the absence of an assembly – the Assembly Act is not relevant, but that […] the general law of order applies” [para. 32].
The claimant appealed to the Münster Higher Administrative Court. On June 16, 2020, the court issued the requested declaratory judgment since “the plot was covered as an assembly area by the basic right of assembly under Article 8 (1) of the German Basic Law because its use in the context of the permanent assembly ‘Climate Camp in the Rhineland 2017’ had a sufficient functional and conceptual connection to this assembly” [para. 70ff.].
The defendant, the State of North Rhine-Westphalia, appealed to the Federal Administrative Court seeking to have the judgment of the court of first instance restored. It argued that there was a spatial distance between plot 55 and plot 65 and therefore, the “camp of tents” was not used specifically for the assembly but merely for an easier accessibility of the main assembly. If such an encampment without a functionally assembly-specific character was declared to be an assembly, it could be restricted on the basis of the Assembly Act only and not under general police and public order law. There was a danger that, in similar cases, mere camping and the permanent besieging of property would be declared as an assembly and placed under the particularly high protection of the Assembly Act, without being necessary to express an opinion.
The Sixth Senate of the Federal Administrative Court delivered its per curiam decision on May 24, 2022.
The Court had to determine whether an agricultural plot of land (plot 65), used as a camp for protesters during the “Climate Camp 2017”, fell in the scope of application of the freedom of assembly under Art. 8 German Basic Law (Grundgesetz, GG) and the German Act on Assemblies and Processions (Versammlungsgesetz, VersammlG).
Initially, the Court reasoned that the “climate camp” was a protest camp, a “newer, increasingly widespread form of collective protest. They are typically held at a location that has a connection to the issue at the center of each one. However, the character of protest camps is determined more by their duration than by their location” [para. 17]. From this specific character of protest camps, it followed “a specific need of the camp participants for infrastructure, especially in the form of care, accommodation and sanitary facilities, which can take up a considerable amount of space at the venue of the camps” [ibid.]
First, following the specific and long-term character of protest camps, the Court laid out the principal standards for the scope of protection for assemblies under the Assembly Act and Basic Law (1.) and examined whether a protest camp like the “climate camp”, as a continuous event (Dauerveranstaltung), was included in this scope of protection (2.).
Second, the Court had then to determine whether the infrastructural facilities for the “climate camp” on plot 65 fell directly under the protection of the Assembly Act and Basic Law (Art. 8 GG) too.
In agreement with the Higher Administrative Court, the Federal Administrative Court held that “[a]n infrastructural facility of a protest camp, which has to be considered as an assembly, is not only subject to the direct protection of Article 8 of the Basic Law […], if it has a substantive connection to the expression of opinion intended by the camp. Rather, this protection is also granted if it is logistically necessary for the specific camp and is spatially attributable to it” [para. 27]. The Court referred to jurisprudence that requires a “functional or symbolic relationship” between a protest camp that qualifies as an assembly on the one hand and an infrastructural facility on the other, so that the latter falls directly within the scope of protection of freedom of assembly under Art. 8 GG. The circumstance that an assembly area is not owned by the public authorities but by a private person is of no significance, if it takes place there with the consent of the owner. The scope of the right of freedom of assembly is also fully open on private property, the Court emphasized.
For the case at hand, the Court referred to the relevant factual findings of the Higher Administrative Court: This found that “all the areas occupied by the climate camp formed a spatial unit” [para. 33]. In addition, “the possibility to participate in the climate camp, which was designed as a continuous assembly, (also) depended on the infrastructural function of plot 65 as an overnight accommodation area […] because alternative accommodation possibilities in the rural region […] were not available”. [ibid.] Thus, the “climate camp” assembly could not have taken place without the use of plot 65 as an overnight accommodation area and was therefore logistically necessary for the organization and realization of the camp. Consequently, the Court found that the infrastructural facilities on plot 65 corresponding to the “climate camp” were an assembly within the meaning of Art. 8 GG and the Assembly Act too and enjoyed direct protection under the right to freedom of assembly.
The Court dismissed the defendant’s appeal and upheld the declaratory relief issued by the appellate Münster Higher Administrative Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Federal Administrative Court expands the protection under the right to freedom of assembly, because it established that protest camps as well as their assembly-specific infrastructures fall within its scope of protection and the scope of application of the Assembly Act. The direct protection under the Assembly Act and the right to freedom of assembly entails heightened scrutiny of measures taken by state authorities. Otherwise, if the Assembly Act is not applicable, state measures, including those in the forefront of assemblies, are examined on the basis of general police and public order law.
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