A few weeks back, we told you about a Facebook page that urged a revival of the Boulder Mall Crawl, an annual Halloween event squelched in the early '90s for being a little too popular (and potentially dangerous). Shortly thereafter, Ryan Van Duzer, co-creator of the page with friend Jonathan Sackheim, was visited by Boulder Police Chief Mark Beckner, who gave him a letter and other material implying that, sans the proper permits, he could be liable for at least $40,000 in charges should the Mall Crawl got out of hand. Van Duzer responded by backing off, but Sackheim declined to meet with the cops -- one reason the department continues to fear problems a week from tomorrow. In a Wednesday blog, Boulder Police spokeswoman Sarah Huntley emphasized that when it comes to the possibility of making Sackheim pick up the tab for Mall Crawl damages, "we're leaving all our options open"."
All of which helps explain why ACLU of Colorado legal director Mark Silverstein and Judd Golden, chapter chair of the Boulder County ACLU, co-authored a massive letter to Beckner and other Boulder County officials (read it in its entirety below) declaring that the actions targeting Van Duzer and Sackheim "were unfounded and unconstitutional, chilling and threatening rights protected by the First, Fifth and Fourteenth Amendments to the Constitution." Adds Golden, "At the core here, these people are simply talking to other people about what they might want to do on Halloween."
Back in the days "before social networking sites, no one would consider sending out the police to talk to people having a broad conversation among friends and associates about going out to do something," Golden continues. "And when we addressed the Mall Crawl issue back in the late '80s and early '90s, these sites didn't exist. There are millions of pages on social-networking sites; probably thousands of them are being created as we speak. So the idea that a Facebook page should be a target like this is frivolous. But more pointedly, what Mr. Sackheim and Mr. Van Duzer said they were going to do didn't violate any laws directly or perspectively. So the police department's threats were completely unfounded."
Golden doesn't suggest that the BPD had no right to air their concerns about the Mall Crawl and other Halloween events, including the Naked Pumpkin Run. "It's just fine for them to say, 'We've had a problem in the past, and we don't want to have a problem in the future. Please don't break any laws.' And if someone is encouraging other people to break the law, it's fine to tell them, 'Don't do this. If they do, they're going to be in trouble.' But they went much further than that. They said, 'You should have gotten permits, because you were organizing a special event. Here are all the forms you need to fill out' -- which were totally inapplicable to what they were going to do. And they said, 'We're going to charge you for what other people may do,' which is in the tradition of the worst excesses of police power.
"These are the kinds of things that were done back in the civil rights movement," he goes on. "People wanted to march, so the authorities told them, 'You need to get a million dollars in insurance. You need permits. You need to talk to these guys' -- all these initial hurdles that were being put up in front of people who wanted to do something legal that the government may not have liked."
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At this point, Silverstein says it's premature to say the ACLU would represent Sackheim and/or Van Duzer in the event that Boulder officials send them a bill for Halloween security, breakage, et. al. "We can't make an offer about something that hasn't happened yet, because we can't know the full circumstances," Silverstein allows. Besides, "I'm certainly hoping that no problems occur." In the event that they did, however, "and if they asked us to take a look at the case, we'd be more than willing to do that."
After all, says Golden, ascribing Mall Crawl responsibility to Van Duzer and Sackheim isn't justified. "If I had a conversation with five people the other day about what they might do on Halloween, and if, for whatever reason, the police weren't in the room, then if those people caused trouble, they would be the ones who should be held responsible -- and they shouldn't be asked if they're a Facebook friend of Mr. Van Duzer."
For more of Golden's and Silverstein's views, here's the aforementioned letter:
Re: City of Boulder Response to Halloween Facebook Post
Dear Chief Beckner and Boulder City Officials:
The American Civil Liberties Union of Colorado and the Boulder County Chapter of the ACLU of Colorado (ACLU) has serious concerns about the City of Boulder's response to a Facebook page post by two men that encouraged people to gather on Boulder's Downtown pedestrian mall on October 31, 2009.
The City's actions detailed below were unfounded and unconstitutional, chilling and threatening rights protected by the First, Fifth and Fourteenth Amendments to the Constitution. This Facebook post was not, as the City falsely claimed, an invitation or attempt to organize a "special activity" as defined by BRC§4-11-2 or a "carnival" under §4-5-1 et seq.
Of great concern is the unfounded threats made to these men in a letter and personal visit from the Chief of Police. These include the threat to charge them $40,000 for additional staffing, security, etc. to respond to possible illegal activity of third parties. The men responded to these threats by taking down the original post and not encouraging people to go to the Mall on Halloween. Yet the police intimidation continues. Boulder Police spokesperson Sarah Huntley is quoted in the October 20 edition of Westword as saying, "[I]f troubles occur . . . we're leaving all our options open."
With the support of the two men who posted this page and the thousands of ACLU members and supporters of the Bill of Rights in Boulder County and Colorado, we urge the City to:
• Take no further action or make no further threats against these men;
• Apologize for the Police Department's false and misleading charges and threats; and
• Take affirmative steps so a Police response such as this does not happen again.
Background: The ACLU is well aware of the history of Boulder's so-called "mall crawl." The ACLU was actively involved from 1989 until 1993 to ensure that the City's efforts in trying to end this ad hoc event did not violate the fundamental rights of law-abiding citizens. Through active negotiations, litigation was avoided over unreasonable police actions such as roadblocks that forced people to explain to a police officer why they were travelling into Boulder and restricting access to Downtown to people with "legitimate business." A copy of our 1990 letter to the City is attached.
The current over-reaction by the Boulder Police and City officials to the prospect of a revised "mall crawl" is very different. This time, in addition to trying to discourage people from coming downtown, the City is trying to stop law-abiding citizens from even TALKING about it.
The City's target in 2009 is a few words posted on one of the millions of global social networking sites on the Internet site Facebook.com. The site claims more than 300 million active users. More than 3 million events are created each month and more than 45 million active user groups exist on the site.
Facebook's mission statement posted on its website is, "[T]o give people the power to share and make the world more open and connected." This is what Mr. Van Duzer and Mr. Sackheim were trying to do when the created a Facebook page about having "[A] big outdoor party on Pearl St. Mall - all you have to do is show up at Pearl St. on Halloween night. Costumes highly encouraged. There are no leaders, there is no agenda, the only rule is to have fun!"
It is impossible to predict who will decide to come to Downtown Boulder on Halloween. Many people do so every year. The weather is a factor. There is a University of Colorado home football game. Stores, restaurants and bars are eager to attract customers as always. And then there is this one Facebook page, which now is much more well-known than it ever would have been due to the City's response and the extensive media coverage it has generated.
Facts and discussion: As the ACLU said almost 20 years ago, the City has the right, within the limits of its police and regulatory powers, to discourage lawless activity, to impose reasonable time, place and manner restrictions on the use of public places including the Downtown Mall, and to actively enforce applicable state and local laws to protect public safety. This can include advance police contacts with citizens, as the Supreme Court noted in Bantam Books v. Sullivan, 372 U.S. 58, 71-72 (1963) (emphasis supplied): "[w]e do not mean to suggest that private consultation between law enforcement officers and [persons] prior to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws... [if] consultation is genuinely undertaken with the purpose of aiding [a person] to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case."
The original Facebook post: This post by Ryan Van Duzer and Jonathan Sackheim, which was taken down after a short time, said in relevant part: "Boulder needs a fun, free, crazy, expressive public event so we can all be merry on Halloween - an event that brings back a Boulder tradition and brings us together to enjoy the awesome holiday of Halloween. (Think of it like Boulder's Mardi Gras.) We just need to behave...just a little, and we'll be fine. The Mall Crawl for is back for Halloween 2009! HOW IT WORKS: It's a big outdoor party on Pearl St. Mall -- all you have to do is show up at Pearl St. on Halloween night. Costumes highly encouraged. There are no leaders, there is no agenda, the only rule is to have fun! WHEN & WHERE: On Saturday, Oct 31, people should start gathering on Pearl St. just East of 11th and spread both directions on Pearl from there."
The Sept 30, 2009 letter from the Police Chief: Titled, "Special Activity or Event Advisement," it requests these men, "stop promoting a Mall Crawl, and instead help us discourage people from coming to the Mall to participate in such an activity. To this end, we would ask you to rescind your Facebook invitations, as well as all electronic communications encouraging people to attend, and rescind your public media requests for people to join you on the Mall on Halloween evening."
The letter also alleges that the Facebook post was an invitation or attempt to organize a "special activity" as defined by BRC § 4-11-2 or a "carnival" under § 4-5-1 et seq. which require permits, insurance, etc. Failure to get these permits would violate City ordinances and the City might prosecute and seek restitution for law enforcement costs. As detailed below, all of these claims are unfounded.
Not a carnival: In the letter, the Police assert that the Facebook post "comes under the requirements for holding a carnival in the city." The attached ordinances, however, demonstrate that this encouragement for people to gather on the Mall on Halloween does not come within those requirements.
The provision that requires a license, § 4-5-2, states: "No person shall operate or exhibit or cause or be operated or exhibited any circus, carnival, menagerie, or similar business without first obtaining a license therefor from the city manager as prescribed by this chapter." There is no definition of "carnival," but the italicized phrase "or similar business" shows that the need for a license is triggered, at a minimum, by operating some kind of business that is deemed to be a carnival. Inviting people to come to the Mall to have fun on Halloween is not in any sense a business.
Further information on the meaning of "carnival" appears in § 4-5-1, titled "Legislative Intent." That section explains the purpose of regulating the conduct of circuses, carnivals and menageries, and one of the purposes is to "provide for the protection of the animals." It suggests that circuses, carnivals, and menageries are not only businesses, but also businesses that use animals in some fashion. While § 4-5-4 (c), which begins "If animals are part of the business..." suggests that the absence of animals is not decisive, it is clear that the Facebook post was not about organizing or promoting any kind of "circus, carnival, menagerie, or similar business."
Not a "Special Activity": The Chief also says that before organizing a "special activity" on the Mall, the "organizers" must obtain a permit. The Chief enclosed § 4-11-16, which requires a "special activity permit." Another page enclosed, which lacks a specific citation to the code, contains a definition of "special activity" that reads, "'Special activity' means an educational or festive activity, or an activity not involving sales and sponsored by a nonprofit group, that involves the use of a booth, blanket, table, structure, cart or other equipment on the mall."
There was no call in the Facebook post for any activity that would involve the use of a booth, blanket, table, structure, cart or other equipment. Therefore, contrary to the Police Chief's assertion, the Facebook post is not a "special activity" as defined by the code.
No Permit Required: The Chief says that the "organizers" could face prosecution if they "continue... organizational efforts without first obtaining a permit." But the Chief did not attach any city ordinances that require a permit for a "special activity," nor did he attach any city ordinances that refer to criminal penalties or criminal prosecution for "special activities" conducted without a permit.
The Chief provided the Facebook posters with what he called an "application packet" that he said "includes all of the requirements for application." What is attached, however, does not refer to a "special activity." On the front page, the packet refers to a "public event" rather than a "special activity." It is called "Application for Public Event on Pearl Street Mall." The second page is a certification that the applicant apparently must sign. But on this page, the applicant is called an applicant for a "special event permit," not a "special activity" and not a "public event." No definitions of "public event" or "special event" appear in the application.
Threats of Prosecution and Restitution: The letter threatens the "organizers" with financial consequences under two theories: 1) restitution as a result of a criminal conviction; and 2) a civil suit by the City. The Chief says that the City's request for restitution would come "should you be convicted of violating an applicable city ordinance." The Chief does not directly threaten a civil action to recover costs, but says only that the City is "investigating the possibility" of such a suit. No ordinances are attached that the Chief claims are applicable.
Legal Analysis: The Boulder Police, with the support of City officials, have clearly over-reacted to this Facebook post which may result in some people coming Downtown on October 31 to celebrate Halloween. Their threats of criminal prosecution, civil penalties and intimidating conduct was unfounded and unconstitutionally violated rights protected by the First, Fifth and Fourteenth Amendments to the Constitution.
The Right To Gather in a Public Place: The Facebook post by Mr. Van Duzer and Mr. Sackheim encouraged people to engage in the constitutionally protected right to go downtown on October 31 to wander and move about freely in a public place and have fun. The police threats and intimidation chilled the exercise of fundamental and protected liberty rights, as noted by the Supreme Court in Chicago v. Morales, 527 U.S. 41, 53-54 (1999)(emphasis supplied) (footnotes omitted): "...the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this 'right to remove from one place to another according to inclination' as "an attribute of personal liberty' protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972).
Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is 'a part of our heritage' Kent v. Dulles, 357 U.S. 116, 126 (1958), or the right to move 'to whatsoever place one's own inclination may direct' identified in Blackstone's Commentaries. 1W. Blackstone, Commentaries on the Laws of England 130 (1765)."
Threats To File Criminal Charges: Both the Police Chief and the Department Chief of Operations personally delivered the September 30 letter to Mr. Van Duzer; Mr. Sackheim got the letter, but did not choose to meet with the officers. The men were threatened by the police with criminal prosecution if they "[C]ontinue promoting/organizing a Mall Crawl" without first obtaining a permit. As described, these are empty and legally unfounded threats.
A similar situation was considered by the Supreme Court in Bantam Books v. Sullivan. A bookstore owner was visited by uniformed police and "encouraged" to not sell certain books that had been placed on a state "objectionable" list. He was told that if the books were not taken out of circulation, he might face prosecution: "People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around and [the bookstore owner's] reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. [by its own inherent force] It would be naïve to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123." Bantam Books v. Sullivan, supra at 68.
Threats to Seek Civil Damages or Restitution: None of the theories of liability or permit requirements cited by the Chief of Police in his letter apply to the conduct of Mr. Sackheim and Mr. Van Duzer. Boulder has no legal right to threaten to hold these Facebook posters personally or financially responsible for what others might do on Halloween night. The First Amendment restricts the ability of the government to impose liability on an individual solely because of his association with another. Civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims. This was the holding of the Supreme Court in NAACP v. Claiborne Hardware, 458 U.S. 886, 927 (1982): There are three separate theories that might justify holding [the event organizer] liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that [the organizer] gave other specific instructions to carry out violent acts or threats.
None of these theories apply to the speech of Mr. Van Duzer and Mr. Sackheim.
Conclusion: We urge the City to: Take no further action or make no further threats against these men; apologize for the Police Department's false and misleading charges and threats; and to take affirmative steps so a Police response such as this does not happen again. Thank you for considering our views. We await your response.
Mark Silverstein ACLU of Colorado Legal Director
Judd Golden Chapter Chair Boulder County ACLU