Judge Robert Mandelbaum faced a tricky decision last Friday at the end of a week-long trial of a dozen elderly Vietnam and World War II veterans and their supporters for continuing to read aloud the names of their fallen comrades at the city’s Vietnam Memorial after the park’s posted closing time of 10 p.m.
But boy would that look bad: The videos posted on the Internet and entered into evidence didn't show one of the usual superficially ambiguous police melees with the sort of noisy young radicals the city's good burghers might find frightening and distasteful; they showed New York's finest, bravely zip-cuffing a respectful octogenarian decorated war hero who saw action in the Battle of the Bulge, arrested while honoring America's war dead on the 11th anniversary of the invasion of Afghanistan.
Even the New York Post, which rarely finds an instance of head-busting police-work it doesn't like, seemed sympathetic to the arrestees this time around. Prosecutors, leery of letting such an ugly case go to trial, had offered the veterans conditional dismissals beforehand. Most of the veterans declined.
Mandelbaum could also find the defendants not guilty of trespass, accepting their argument that the First Amendment protects their right to assembly and political speech. But if he did, what sort of precedent might that set for other, perhaps less sympathetic Americans asserting their First Amendment rights? What might it do to the NYPD's future ability to shut down political expression in the name of public order?
Sam Adams, a 63-year-old veteran of the 101st Airborne, had testified the day before that a police lieutenant was sheepishly apologetic while arresting him October 7. "The Lieutenant said, 'Occupy Wall Street really screwed this up for you guys. You've got them to thank for this,' " Adams said.
The Occupy connection wasn't just in the minds of the cops. Several of the veterans arrested on October 7th had been arrested in the same place five months before, when police forced Occupy Wall Street protesters out of the memorial on May Day. Prosecutors worked relentlessly through the trial to show that the veterans were knowingly trying to pick a fight with the NYPD over closing the park, but it's a point most of the defendants freely admitted.
Tarak Kauff, one of the organizers of the October 7th remembrance, told Gothamist that it was partly motivated by a desire to push back against the NYPD overreach he saw on May Day. One of the banners the veterans carried the night of their arrest read "Nightmares of war don't end at 10 p.m."
The text of the First Amendment seems absolute: "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." But in practice, courts have allowed restrictive laws if they serve a significant government interest and do so in a way that is narrowly drawn and content-neutral.
Prosecutors argued that closing the memorial at 10 p.m. served the significant government interests of allowing time for maintenance of the memorial and making things easier for police. They cited a 1999 2nd Circuit ruling that held, "A city the size of New York cannot allow rallies or demonstrations to take place in city parks at the whim of promoters."
Assistant District Attorney Marisa Darden, who prosecuted the veterans with ADA Lee Langston, pointed to testimony from NYPD Captain Nicole Papamichael, who had told the court of her concerns about allowing people to assemble at the memorial. "From the NYPD perspective, any large group can produce discord," Darden said.
But the veterans' lawyers countered that no "maintenance" ever took place after 10 p.m., and that police witnesses had failed to offer any evidence backing up their claims that allowing groups to stay in the park past 10 p.m. would be dangerous.
Defense lawyers also invoked international law, asking Judge Mandelbaum to interpret the First Amendment in line with the International Covenant on Civil and Political Rights, which also protects the rights of free speech and assembly, with very narrow exceptions. The United States signed and ratified the covenant in 1992, but U.S. courts have been slow to consider it. Judge Mandelbaum showed no enthusiasm for defense attorney Jeanne Mirer's invitation for him to "be a groundbreaker."
Both sides finished their closing arguments Friday morning, with Darden calling the veterans' conduct "a publicity stunt" and defense attorney Martin Stolar saying "there's something about this case that just smells wrong."
After a long recess, Judge Mandelbaum solved the dilemma before him with a brilliant piece of judicial legerdemain posing as Solomonic balance. The defendants were guilty of trespassing, Mandelbaum ruled. The police's policy of clampdowns on First Amendment activities would remain intact.
But while he upheld the NYPD's comically heavy-handed suppression of speech, Mandelbaum couldn't live with the actual consequences of doing so. Immediately after finding the veterans guilty, he delivered a deus ex machina: Citing the veterans' age (which ranges from 50 to 86), their distinguished military service, and their sincerity, Mandelbaum announced that "little purpose would be served" by sending them to jail for 90 days, so he was taking the unusual step of dismissing the convictions "in the interest of justice." For the veterans, it was an illogical and patronizing decision that left them frustrated and perplexed.
"I'd rather have had him uphold our arguments with regard to the First Amendment," said Ken Mayers, a 76-year-old Marine Corps veteran from Santa Fe. "My own feeling is the government is continually encroaching on our first amendment rights. We were all willing to pay the price. But we'll keep at it."
Nick Pinto is a freelance writer living in New York
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