Mayor de Blasio's Times Square task force to tackle toplessness and other serious threats to the Republic has recommended that the neighborhood's pedestrian plazas be strictly regulated.
According to the Times, new laws would seek to restrict costumed characters, desnudas, and other citizens engaging in legal activity to what the Times Square Alliance has called "designated activity zones" within the next year or so. “We want to be responsible, and we want it to be constitutionally robust,” Councilmember Corey Johnson, who represents the area, told the paper.
"It sounds like they think they're getting a handle on the problem, but I think it's a little more slippery than they think," civil rights attorney Ron Kuby told us, adding, "should I continue to make boob jokes? I don't want to repeat the material because it sounds stale."
Kuby drew the distinction between permissible First Amendment restrictions that are "content neutral," and those that are not.
"Saying that no one has access to close down Sixth Ave on weekdays between 3 p.m. and 7 p.m. is content neutral—it doesn't matter what your cause is, whether you're for the Israelis or Palestinians, or anti-ISIS, or long-live Osama, no one can do that," he said. "On the other hand, if you were to enact a piece of legislation that said, for example, that people who are engaged in panhandling or have their shirts off may only do so at this time and place and location, that is absolutely classic content-based restriction."
While Councilmember Johnson told the Times that the restrictions would also apply to "CD sellers, bus-ticket sellers, everyone who is currently using these plazas for commercial activity," Kuby says that comments from NYPD Commissioner Bill Bratton and Mayor Bill de Blasio have explicitly singled out citizens engaging in legal activity.
"Part of the problem the City has at this point is that even if they try to write a piece of legislation that sounds content-neutral, they've already made it clear that this is based on tickle-me Elmos and bare boobs," Kuby said, noting that "courts are not required to ignore the social and political history that leads up to the piece of legislation."
Civil rights attorney Norman Siegel pointed out that in two other instances in which the City has legally (if dubiously) restricted First Amendment activity on public property—in front of the UN and outside then-Mayor Bloomberg's Upper East Side residence—the argument was based on the need for security. In Times Square, he said, this argument crumbles.
"If they wanted to make a similar security argument and wanted to say that because of all the people there, someone could blow stuff up, then that argument could be at any public venue—a basketball game, a baseball game," Siegel said. "And if they make the argument about congestion, because of cars or people, they have a hard burden to prove that, even if they showed it was congested, that this is the least drastic way to address the problem without violating freedom of speech. They would love, I'm sure, to ignore the constitutional issue, but I don't think they're going to be able to ignore it."
A spokesman for Councilmember Johnson has not yet responded to our requests for comment.
On a radio show this morning, Mayor de Blasio defended the proposed rules: "We’re still finalizing, but I think it’s a very strong recommendation."
The mayor also said that the costumed characters should be treated and regulated as businesses, "because, let’s face it—the costume characters are a business … The constitutional challenge has to be navigated appropriately, but yes. The goal is that, if it’s a business, it’s a business, and it should be treated like any other business."
Kuby wondered how the rules would be implemented.
"If you're going to sort of create different areas where people are allowed to do things and not others, I suppose you have to provide proper warning that they're entering a muppet zone, or a nipple zone," Kuby said. "DANGER: NIPPLES PAST THIS POINT. Or other things to properly inform the public of the perils they face."
Siegel said that while he wasn't an expert on public policy, "what I'm expert on is the constitutional stuff: This plan will have serious problems. I can't imagine this plan wouldn't be challenged in the court. Whether I do it or not, someone's going to do it."
In a statement, Zachary Carter, the head of the City's Law Department, said that "while balancing First Amendment principles with the need for public order is often challenging, we do not accept that it is impossible.”