Amici Curiae Brief Filed

SL, PDC Protest Big Apple Police State

We reprint below an amici curiae (friends of the court) brief filed by the Spartacist League and Partisan Defense Committee in the U.S. Court of Appeals for the Second Circuit in New York City on February 11. Submitted in support of the United for Peace and Justice coalition’s appeal of a lower court decision upholding the NYPD’s prohibition of a protest march past the United Nations on February 15, our brief predicted, “In criminalizing any march that day, the government is preparing an outright provocation virtually guaranteeing that not a few protesters will end up beaten and bloodied by the NYPD.”

Those who made it to the rally site on February 15 were herded into tightly controlled police pens. Many who attempted to navigate the maze of police barricades to get to the protest were directed by cops into streets that were then sealed off. A videotape released by the demonstration organizers at a February 18 press conference shows mounted police backing horses into the crowds, cops pummelling demonstrators with nightsticks and penned-in protesters being pepper-sprayed. Some 300 protesters were arrested. The following day, cops in San Francisco arrested 46 protesters at an antiwar demonstration of 200,000 there.

As the PDC wrote in a February 15 letter protesting the NYC arrests: “With cops armed with machine guns roaming the city’s streets and the subways, the courts and their armed police thugs were hoping to intimidate people into staying home today. But they failed. Over 500,000 demonstrators defied the cops and courts and came out to express their opposition to the slaughter the government is planning in Iraq, joining millions of antiwar protesters across the globe. We demand: Free all the protesters now! Drop all the charges!


The Spartacist League is a Marxist political organization with a history of almost forty years of activity in the United States, including running candidates for public office, holding classes and public forums on Marxist history and international and domestic politics, initiating and participating in protest demonstrations against government policies, and publishes a bi-weekly newspaper, Workers Vanguard, and a theoretical journal, Spartacist. The Spartacist League seeks to educate workers and their allies to build a workers party which fights for a socialist future.

The Partisan Defense Committee is a class-struggle, non-sectarian legal and social defense organization which champions cases and causes in the interest of the whole of the working people. This purpose is in accordance with the views of the Spartacist League.

The Spartacist League and Partisan Defense Committee file this motion and brief because they are tenacious defenders of their own legality and of those democratic rights won through bourgeois revolutions and revolutionary wars—the parliamentary partisans in the English Civil War, the U.S. Revolutionary War, the French Revolution and the American Civil War. Amici intend to participate in the protests against the Iraq war set for February 15, 2003 in New York City and support the Plaintiff-Appellant’s appeal of the District Court’s ruling upholding the City’s abrogation of the democratic right to march in protest of the United States government’s impending war against Iraq.

Amici have filed lawsuits as well as engaged in decades of political activity against prior government attempts to criminalize the expression of First Amendment rights by falsely targeting opponents of government policy as terrorists. The Spartacist League successfully sued the Federal Bureau of Investigation (FBI) in 1983 after the FBI changed its Guidelines, designating political organizations as “domestic security terrorist organizations.” As a result of that lawsuit, the FBI withdrew its witchhunting “definition” of the Spartacist League. On February 9, 2002 amici initiated the first labor-centered united-front protest in the U.S. against the USA-Patriot Act and the government’s anti-immigrant witchhunt, which has been conducted in the name of the “war against terrorism.” Amici have long understood and propagandized that if political opponents of the government and government actions are put in the category of “terrorists,” this defines them as “outlaws” of civil society, providing the state with a license to suspend democratic rights, criminalize political activity, and ultimately to engage in legalized murder. It was the fate of the Black Panther Party (BPP) to be deemed a “terrorist” organization by the FBI, and it was subjected to a government COINTELPRO campaign of harassment, surveillance and prosecution; government agents killed some 38 members of the BPP.

Amici Spartacist League and Partisan Defense Committee file this brief in support of the right of opponents of the United States’ impending war on Iraq to march in protest of government policies. As the United States government prepares to launch an imperialist war of plunder against Iraq in the name of “freedom,” the District Court below banned not only the projected march that would pass by the United Nations, but effectively endorsed the New York City Police Department’s right to ban any protest march at any time in the streets of Manhattan. The Court asserted that it “will not second guess or substitute its judgment for that of the NYPD,” thereby leaving the Police Department as the arbiter of democratic rights, including the fundamental First Amendment rights of speech and assembly, and criminalizing protest against the government.

This controversy over the right to march in opposition to the government’s impending war against Iraq arises in the context of a wholesale government assault against democratic rights following the September 11, 2001 murderous attacks on the World Trade Center. The Bush administration with bipartisan support has since engaged in a so-called preventative and pre-emptive global “war against terrorism.” From the USA-Patriot Act to new FBI Guidelines to the proposed “Domestic Security Enhancement Act,” the government is engaged in a wholesale evisceration of democratic rights, including granting to itself the authority to detain terrorist suspects or potential material witnesses indefinitely, spy on individuals not suspected of committing crimes and use secret “evidence” and deny terrorist suspects legal counsel. Concomitantly, the government has relegated to itself the sole and legally unchallengeable right to indefinitely imprison U.S. citizens, without counsel and without judicial hearing or review. Internationally, the U.S. has kidnapped foreign nationals suspected of terrorism, imprisoned suspects indefinitely and authorized assassinations, overriding international conventions and its own longstanding ban on assassinations.

The District Court’s ruling upholding the City’s ban on the protest march is a frontal assault on the First Amendment right of speech and assembly and an ominous escalation in the government’s crackdown on the rights of the population in the name of the “war on terror.” The federal government itself has intervened and in an extraordinary move declared in the District Court that it would take legal action if the Court ruled allowing the march.

One has only to look at the photo of police at Times Square armed with semi or perhaps fully automatic rifles which appeared on the front page of the February 11 New York Times and the referenced article, “Administration Gives Advice on How to Prepare for a Terrorist Attack,” for a vivid picture of how New York City is being turned into an armed camp, while government officials brazenly admit there is no evidence of an “imminent threat.” This is a concretization of the fact that the government’s “war on terror” is a war on the populace, focused primarily on immigrants, the labor movement and minorities—and anyone who protests government policies.

The “war on terror” began domestically with a roundup and imprisonment of immigrants of Near Eastern and South Asian descent. Then it was declared that a citizen determined to be an “enemy combatant” could be stripped of fundamental constitutional rights including the right to counsel and a trial and be effectively disappeared. The latest plan, contained in the expansion of the USA-Patriot Act, is to strip citizenship from anyone the government deems to be “aiding terrorists.”

As popular opposition to the impending war against Iraq mounts, the government isn’t stopping there. When the longshoremen’s union on the West Coast was locked in a showdown with union-busting shipping bosses, the government intervened to threaten that any strike action by the workers would be a threat to “national security” and then brought down the Taft-Hartley law effectively against the union. When New York transit workers voted to go on strike, the media screamed that transit workers were launching a “jihad” and the strikebreaking Taylor Law was invoked. Firefighters who lost over 300 of their comrades trying to save people in the World Trade Center are declared a “clear and present danger to the United States” in a letter signed by Republican House majority leader Tom DeLay because they are unionized.

In the aftermath of the destruction of the Soviet Union and capitalist restoration, the United States government has asserted itself as the unquestionable supreme military power in the world. To carry out its imperial designs abroad, now concentrated on waging war against Iraq, the government needs class and social peace at home. In order to accomplish these ends it is attempting to regiment the population through an ideological “national unity” crusade and war propaganda. Seizing on the criminal attack against the World Trade Center, which killed thousands of innocent civilians, the government launched this “war against terror,” which has led to smearing all government opponents and actions in opposition to government policy as threats to national security and criminalizing dissent.

Pursuant to Rule 29 of the Rules of the Second Circuit Court of Appeals amici curiae have concurrently filed a motion for leave of this Court for permission to submit this brief.


A. The Primacy of First Amendment Rights

The First Amendment rights are intertwined and indivisible; and in class society, reversible. The First Amendment is a unified totality, the “text is indeed both general and absolute. In one sentence it separates church and state and guarantees free opinion.” (See Mitchell Franklin, “Infamy and Constitutional Civil Liberties,” Lawyers Guild Review, Vol. XIV, No. 1, p. 3 (1954).) The First Amendment is the “keystone of our Government,... the freedoms it guarantees provide the best insurance against destruction against all freedom,” stated Mr. Justice Black, dissenting in Dennis v. United States, 341 U.S. 494, 580 (1951). The First Amendment is unified in its various clauses by the central liberty of freedom of the individual in matter of thought and conscience whether the concerns are political, religious or social. The legal force of the First Amendment applied only to the federal government until the defeat of slavery on the battlefields of the Civil War provided the legal basis for a national American state. Legally this was codified in the Reconstruction Amendments to the U.S. Constitution, subordinating the state governments to these democratic principles. (See Gitlow v. New York, 268 U.S. 652 (1925), Cantwell v. Connecticut, 310 U.S. 296 (1940).)

As Marxists, amici curiae recognize that the contraction of constitutionally protected rights is rooted in the class nature of the capitalist state. Harold Laski explains in his treatise, The State in Theory and Practice (1935):

“... how accidental was the union of capitalism with democracy. It was the outcome, not of an essential harmony of inner principle, but of that epoch in economic evolution when capitalism was in its phase of expansion. It had conferred political power upon the masses; but it was upon the saving condition that political power should not be utilized to cut at the root of capitalist postulates. It would offer social reforms so long as these did not jeopardize the essential relations of the capitalist system. When they did as occurred in the post-war [World War I] years, the contradiction between capitalism and democracy became the essential institutional feature of Western civilization.”

Constitutional history demonstrates that particularly when the populace is being prepared for war, the protections of the First Amendment are denied to the populace. The Bill of Rights was less than a decade old in 1798 when war hysteria prompted the Federalist-dominated United States Congress to enact the Alien and Sedition Acts. Constitutional challenges to the Acts were generally precluded in the federal courts. During World War I, the Espionage Act of 1917 and the Sedition Act of 1918 were passed and then upheld by the U.S. Supreme Court in Schenck v. United States, 249 U.S. 47 (1919). In 1940 Congress, concerned with the increased possibility of the United States entering into World War II, passed the Alien Registration Act (better known as the Smith Act). The first to be prosecuted for their opposition to the impending interimperialist war were the Trotskyists of the Socialist Workers Party. The convictions for conspiring to overthrow the government by force and violence were affirmed by the Court of Appeals, Dunne v. United States, 138 F.2d 137; and the Supreme Court refused review, 320 U.S. 370 (1943). The internment of American citizens of Japanese descent during World War II, Korematsu v. United States, 320 U.S. 214 (1944) is a notorious example of trampling on democratic rights of citizens during wartime. Post-World War II, during the McCarthy anti-communist witchhunts, members of the Communist Party were convicted under the Smith Act, Dennis v. United States, 341 U.S. (1951).

The attacks on the First Amendment and on the rights of citizenship are reflections of the tendency toward state bonapartism, part and parcel of the drive toward war. The U.S. imperialist government wants the capacity to conduct its wars and military adventures as well as deal with the threat of class or social struggle at home without the encumbrances of Congressional approval, judicial oversight, or even the theoretical nod toward the democratic expression of the populace. In the current, post-September 11 “war against terrorism” period, as the U.S. government prepares for war against Iraq, the evisceration of First Amendment rights proceeds at a rapid pace. A core component of this diminution of democratic rights is the move toward unfettered power by the executive branch, a move toward state bonapartism. Such a move toward a police state relies on a compliant judiciary.

B. The District Court’s Refusal to Grant Plaintiffs a Preliminary Injunction Violates Plaintiffs’ First Amendment Rights
and Constitutes Irreparable Injury

The Federal District Court ruling not only denied the application by the United for Peace and Justice coalition to march by the United Nations but also effectively endorsed the NYPD’s right to ban any protest march at any time in the streets of Manhattan. The court ruling baldly stated that “The Court will not second guess or substitute its judgment for that of the NYPD.” The linchpin of the Court’s decision is the full acquiescence to the rationale by the NYPD representative: “The City’s concerns with respect to crowd control are exacerbated by the added security concerns since September 11, 2001. The nation and the City are currently at the second highest security alert, a fact that the NYPD must take into account in determining the level of risk. The police can more effectively monitor crowds for terror threats at stationary rallies than they can crowds moving in a procession.”

With war imminent and popular opposition continuing to mount, the government is sending a message that those who protest against the war are potential terrorists and therefore antiwar protest can be deemed criminal.

In explaining why marching rights given to organizers of “cultural events” like the St. Patrick’s Day Parade are off-limits to antiwar protesters, the Court below explicitly terror-baited the planned demonstration, dismissing some 360 organizations as just so much rabble, stating “the Court finds that the heightened security concerns posed by an unorganized, large scale march threaten the City’s interest in maintaining public safety.” The Court further declared that the march would be “simply too large for the NYPD to adequately secure the safety of United Nations Headquarters” and endorsed the testimony of a top NYPD official that “if somebody in the group had a device, I don’t know how we would be able to stop it with that amount of people.” The presumption is an equation of antiwar protests with a nest of terrorists.

In regard to the police’s ability to conduct surveillance, the Court contrasted the projected antiwar demonstration with “cultural events,” asserting “annual parades provide the NYPD with the opportunity to conduct visual security checks and identify the members of a groups [sic] as they arrive at their respective staging areas.” What is the meaning of this comparison except to presume that the 100,000 or so people who march in the annual parade are all known to the police and deemed non-suspects for conducting terrorist attacks? What rational difference is there between those groups who march in the cultural parades and those who march in the antiwar protest except for the purpose and content of the latter’s exercise of First Amendment rights?

Moreover, common sense and familiarity with such parades exposes just how misleading the comparison is between the so-called super organized parades and the unorganized protest march. In the case of some of these parades, the actual number of marchers is qualitatively smaller than the tens of thousands of spectators who line the streets, roaming freely along (and through) the line of march.

Furthermore, antiwar protests are not a new occurrence. Comparable numbers of demonstrators marched in Washington, D.C. and in San Francisco a month ago; moreover these numbers marched in New York City protesting the Vietnam War. Marches were not banned; the extreme measures planned by the New York City police were neither projected nor implemented.

With well over 100,000 likely to turn out in New York City on February 15, the NYPD intends to herd the protesters into a series of tightly controlled pens. Based on the newspaper reports on the “preparations against terrorist attack” taking place in New York City, the protesters will be placed under armed guard by the NYPD, with little or no intercourse between the various police pens. This will not only have the effect of chilling and intimidating the protest, but will create chaos and disorder. In criminalizing any march that day, the government is preparing an outright provocation virtually guaranteeing that not a few protesters will end up beaten and bloodied by the NYPD.

In bowing to the judgment of the NYPD the Court below has relegated to the police the role of sole arbiters of the exercise of elementary and fundamental constitutional rights. This is consonant with the rationale of a police state; consonant with a growing body of judicial decisions which adopt the government’s unsupported allegations in matters they deem to be “national security,” ignoring the rights of citizens and non-citizens alike.

Plaintiff-Appellant is entitled to a preliminary injunction enjoining Defendants-Appellees from depriving the United for Peace and Justice coalition and all those who join them the right to march in protest against the impending war against Iraq. Plaintiff-Appellant has demonstrated that it will suffer irreparable harm in absence of the requested relief, Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996), as well as a likelihood of success on the merits, Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996). Plaintiff-Appellant demonstrated that the injunction sought would provide substantially all of the relief sought by clear and substantial evidence. Id.

Plaintiff-Appellant will suffer irreparable injury by the violation of their First Amendment rights under the Constitution of the United States. “The loss of First Amendment freedoms even for minimal periods of time, unquestionably constitutes irreparable harm.” Million Youth March Inc. v. Howard Safir, et al., 18 F.Supp.2d 334, 339 (S.D.N.Y. 1998) (quoting Elrod v. Burns, 427 U.S. 347, 373-374 (1976)). Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of preliminary injunctions. Bery v. City of New York, 97 F.3d at 693. In this case, Plaintiff-Appellant’s First Amendment rights of free speech and assembly are being deprived by Defendants’ refusal to allow a march. Contrary to the holding of the District Court, the right to march is a fundamental exercise of the rights of free speech, free assembly, and freedom to petition for redress of grievances, “in their most pristine and classic form.” Edwards v. South Carolina, 372 U.S. 229, 235 (1963). If Plaintiffs are denied the ability to march, they will not be able to exercise their constitutional right of freedom of speech in a meaningful manner. Plaintiffs will suffer an irreparable injury to their First Amendment rights if an injunction is not granted.

C. Substantial Likelihood of Success on the Merits

Plaintiffs have shown a substantial likelihood of success on the merits. “Activities such as demonstrations, protest marches and picketing are clearly protected by the First Amendment. Edwards v. South Carolina, Id.; Thornhill v. Alabama, 310 U.S. 88 (1940). The police department does not have the unfettered discretion to “refuse a permit on mere opinion that such refusal will prevent riots, disturbances or disorderly assemblage.” Hague v. C.I.O., 307 U.S. 496, 516 (1939).

To pass Constitutional muster any legally cognizable restriction on the time, place and manner of speech must be content neutral. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L. Ed. 2d 471 (1965). The discretion of the government in applying regulations cannot create unfair discrimination. Johnson v. Bax, 63 F.3d 154 (2d Cir. 1995). As is clear given the distinction being made between the projected antiwar protest and parades, this is a clear case of discrimination based on the political content of the banned march.

In order for Plaintiffs to exercise their First Amendment rights in a constitutionally meaningful way, it is necessary for there to be a march and there is no constitutionally cognizable “alternative.” See Students Against Apartheid Coalition, 660 F.Supp. 333 (W.D. Va. 1987), Million Youth March v. Safir, 18 F.Supp.2d 334 (S.D.N.Y. 1998), Olivieri v. Ward, 801 F.2d 602 (2d Cir. 1986). See also New Alliance Party v. Dinkins, 743 F.Supp. 1055 (S.D.N.Y. 1990).

Equally fundamental (and perhaps more so) to the exercise of the right to free speech is the ability to not merely express oneself to those with like ideas, but to make an effective, meaningful expression of opposition as well. Bery v. City of New York, 97 F.3d 689, New Alliance Party v. Dinkins, 347 F.Supp. 1055; and Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990).


The fundamental proposition of the First Amendment is to constitutionally safeguard free speech. There is no more urgent time to do so than now. The NYPD ban against this political protest march constitutes an intimidation tactic by the government against those who would demonstrate their opposition to government policies. The alternative presented by the City—putting tens of thousands of people into tightly controlled pens surrounded by heavily armed police—is a recipe for police attacks and violence against the antiwar protesters. The District Court decision acquiescing to the NYPD ban of the February 15 march on the grounds that it is a security and “terror” threat is an open declaration that any opposition to the United States government’s war moves can be criminalized as potential “terrorism.” It must be reversed.

Respectfully submitted,

Dated: New York, New York
February 11, 2003

ICL Home Page