One of the cardinal principles of First Amendment law in America is that government officials even at the local level may impose reasonable restrictions on the time, place and manner of speech – but all such restrictions must at all times be “content neutral” so as not to violate anyone’s freedom of speech.
In other words, a town can always bar outside groups from using its town hall based on concerns about cost and security, but, unless it is looking to get sued, it may never decide which such groups get use of town hall based on the content of their speech.
Yet, that’s exactly what Town Supervisor Paul Feiner and the Greenburgh town board appears to have done earlier this week when they hastily adopted a building use policy that allowed one outside group free use of Town Hall on November 5 because they thought the subject matter of their meeting and fundraiser that night – “free speech versus hate speech” — was so benign no one would object.
They were wrong – the subject of the November 5 meeting turns out to be highly inflammatory – about Metro North advertisements sponsored by pro-Israel groups that allegedly demonize Muslims as militant jihadists — sparking calls for an even larger protest at Town Hall by pro-Israel groups than the one that took place October 19 – and potentially costing Greenburgh taxpayers tens of thousands of dollars more in police overtime for bomb sweeping dogs, metal detectors, and police-manned barricades.
But to make matters worse, Mr. Feiner apparently never told town board members considering the building use policy on October 20 that he had met privately on October 14 with two members of a pro-Israel group that asked for free use of Town Hall for a meeting of its own.
As a result, not only did town board members vote to allow the November 5 “Islamophobia” meeting and fundraiser to go forward, which they never should have done, but they unwittingly voted to bar the pro-Israel group that supports the ads from meeting altogether because the group was not on the Town’s building use calendar as of October 2, 2015. That was the date town officials say Police Chief Chris McNerney picked as the cut-off date for any outside group that had already reserved Town Hall for their own use. It is not known whether Chief McNerney knew of Mr. Feiner’s October 14 meeting.
Mr. Feiner, of course, knew that picking the October 2 date would prevent the pro-Israel group from meeting, but never told his colleagues on the town board.
In the meantime, rather than admit his mistake in judgment, Mr. Feiner is going on the attack by, among other things, criticizing the Edgemont Community Council for having brought these matters to light. He claims the ECC opposes the November 5 event – not because it is an inappropriate use of Town Hall – but because the ECC supposedly has an “anti-Muslim” pro-Israel agenda.
In that connection, Mr. Feiner attempted to post on the ECC’s facebook page this evening an email purportedly from Arlene R. Popkin, a retired civil liberties lawyer from Elmsford who is one of the speakers scheduled for the November 5 event, in which she supposedly claimed to have seen a “false and offensive statement” from the ECC reporting that she was a “participant in an anti-Israel meeting and fundraiser. ” She suggested that the ECC was “making up false charges” to further its own agenda.
In a post earlier this week, the ECC had attached a flyer advertising the November 5 meeting and fundraiser, said the sponsors included Wespac which held what Mr. Feiner called an “anti-Israel” meeting and fundraiser at Town Hall on October 19, and identified the three speakers scheduled for the November 5 event, including Ms. Popkin. The ECC also said the first speaker listed, Bina Ahmad, was a lawyer with the National Lawyer’s Guild which advertises on its website that it is a member of the “U.S. Campaign to End the Israeli Occupation.”
The Popkin email that Mr. Feiner posted said she is a strong supporter of the State of Israel, but not the Netanyahu government or its policies. The email then attacked the woman who sponsored the Metro North advertisements for “demonizing” Islam by suggesting that every Muslim is a “dangerous savage” – i.e., words that ironically may be characterized as Ms. Popkin’s own “hate speech” against the advertisement’s sponsor, whose name has never been mentioned in any ECC post — and almost certain to spark outrage among pro-Israel groups who have defended the ads. She nevertheless said in the post that while she strongly disagreed with the content of those ads, she would not have government suppress them.
The ECC’s executive board decided tonight to delete Mr. Feiner’s post in its entirety because (1) we do not know whether Ms. Popkin had authorized or otherwise given Mr. Feiner permission to post it; (2) her comments were themselves “hate speech” for which the ECC facebook page is not the proper forum for such comments; (3) publication of the post might embarrass Ms. Popkin, whom we do not know, because it was clear from her post that she had never heard of the ECC, does not know who we are, or what we do; and (4) Mr. Feiner offered no commentary of his own on the purported post from Ms. Popkin.
Furthermore, as we have stated now on several occasions, the ECC is opposed not to the exercise of Ms. Popkin’s First Amendment rights, or those of anyone else, but rather to the exercise of those First Amendment rights in a taxpayer-financed government building being offered for free where taxpayers who never authorized this expense must now foot the bill for the costs of police overtime and security.
For these reasons, Mr. Feiner and the town board had ample legal authority on October 20 to ban all outside groups from using Town Hall, effective immediately, even if they had already booked the room. Had they done so, the November 5 event would not have to take place and the protest being planned at Town Hall for that occasion would not have to occur.
Instead, they decided to pick and choose, based on the content of their speech, which outside groups should be permitted to use Town Hall and which should not, and for that reason, they have impermissibly exposed town taxpayers to tens of thousands of dollars in costs and the very risk of the kind of litigation which they said they were trying to avoid.