1.

Public Space as Public Sphere

The Front Steps of New York’s City Hall

The front steps of New York’s City Hall appear as an ideal model of a public space: a public property where groups may gather to criticize decisions of elected officials in full view of others. If we imagine Nancy Fraser’s idea of the public sphere as the place where members of a public formulate and deliver messages regarding public issues to those officials who should be held accountable, then there can be no more important location for these activities in New York than City Hall’s front steps. The design of the steps of City Hall encourages a very particular kind of civic engagement. Press conferences and demonstrations are different from letters, petitions, phone calls, and hearing testimony. They are more akin to theater and performance: visibility is key, making design all the more important.

The steps’ design supports this function by providing a physical setting for the nonphysical public sphere. Even in the absence of speech or protest, the steps evoke their function: if a park looks like a field waiting for a soccer team, the steps of a city hall look like a platform waiting for a speech. When viewed as part of an ensemble, with City Hall’s facade and the open plaza below, the steps can be seen as a stage, the facade as a dignified backdrop, and the plaza as a place from which to view and comment upon the performance (Figure 1.1). The permanence of the steps’ marble surface and the classical references of their architectural detailing convey legitimacy across time. If the interior of a city hall is the place where elected officials debate and develop policies that affect the lives of city residents and where they hear testimony of individuals about these policies, then the exterior of a city hall is where groups and individuals respond to the consequences of these policies: both celebration and dissent, en masse and in full view of those inside the building and of those going about their day on the sidewalks and streets. They are, symbolically and in reality, a threshold between a government and its citizens.

But while the steps appear through design as an ideal melding of public space and public sphere, their contemporary history indicates that this hybrid is, because of its very potency, a fragile construct. Sites like the front steps of City Hall carry a high political charge. They are the perfect location for demonstration and protest, but they are also the perfect location for government-sponsored spectacle. Accommodating both activities is not a simple problem of scheduling; each often acts against the other. A mayor holds events on the front steps that promote her public image, perhaps by welcoming foreign dignitaries or successful athletes. By presenting information critical of her policies, a nonprofit holds events on the front steps to challenge the mayor’s public image. Because the distance between two such kinds of actions—promoting government officials and protesting government decisions—is often so great, and because challenges to a government official’s image are often perceived as a threat, officials set out restrictive policies to impede their critics’ actions. Through these policies even the best-designed public spaces can cease to serve the purposes of a public sphere.

By examining a series of legal cases regarding front steps of City Hall as a site for free speech, this chapter attempts to map the limits of government-owned public spaces as sites for democratic action. Between 1998 and 2005, Housing Works, a nonprofit organization and outspoken critic of former Mayor Giuliani’s politics toward homeless people suffering from HIV/ AIDS, fought in court for their right to deliver their message from the steps. The mayor’s office sought to block their efforts and eventually to punish them for their messages. While Giuliani’s post-9/11 image was that of “America’s Mayor,” for much of his time in office Giuliani was criticized for not dealing with issues like diminishing units of affordable housing and increasing numbers of people in poverty. The Housing Works story shows that maintaining public space–public sphere hybrids requires ongoing litigation, particularly in locations as central to public life as City Hall.

The Public Life of City Hall

The importance of the front steps of City Hall as a public space in New York City cannot be underestimated. Over the past two centuries, the steps have been the physical setting for press conferences, demonstrations, the celebration of military victories, the mourning of soldiers and heads of state, and other less overtly political events like mini circuses with real elephants, exhibition boxing matches, and send-offs for city choruses set to travel abroad.

New York’s City Hall¹ sits in the southern portion of Manhattan. Its design was the result of a competition won by John McComb Jr. and Joseph Mangin.² At the time of its construction between 1803 and 1812, City Hall marked the northern reaches of the city. If the edges of the island of Manhattan reached out into the rivers in a riddled mass of piers and marshes and boats, City Hall marked the northern boundary, turning its best face to the city. The building is part of a complex consisting of the building, a forecourt, and a park, all of which were carefully bound by neatly wrought iron fencing. The front of the building (the south side) was clad in marble at great expense. The north side was clad in brownstone to save money. This choice of brownstone would not have detracted from the grandeur of the building, since the north side was thought to be “safely out of site.”³

A photo of City Hall from 1835 shows the building and its large fenced park flanked by a wide sidewalk. The building’s design is straightforward: the main facade includes broad stairs topped with a portico, an additional story and gallery, and a belvedere topped with a copper dome. Two identical wings that extend to the south flank the central portion of the building, creating a shallow courtyard around the steps. The wings give a sense of solidness to the overall structure, anchoring it to its site. The facade also conveys solidness. The regularity of the windows and the orderliness of the columns appear reasoned. The building is not laden with ornament but appears almost regal, particularly in comparison with the places where most New Yorkers of the time spent their days.

The interior of the building is no less impressive. Beyond the lobby is the rotunda, with a grand circular staircase capped by a glass-domed skylight that is supported by ten Corinthian columns. The walls are decorated with 120 portraits of statesmen, former mayors, and military heroes. Figures from the War of 1812 are well represented; this war produced “a new hero daily,” and at the time City Hall needed portraits.⁴ Also included in the portrait collection are Thomas Jefferson and a number of former city mayors, including John Lindsay, Edward Koch, and David Dinkins.⁵

Photos from the Municipal Archives of the city of New York, the City Hall Library, and newspaper articles illustrate nearly 200 years of spectacles, protests, press conferences, and demonstrations on the front steps of City Hall and in City Hall Park. One of the most elaborate events was the spectacle following the death of President Abraham Lincoln. Though New York residents rejected Abraham Lincoln by a two-to-one margin in the 1864 election, they “embraced him”⁶ after his assassination. Descriptions give a sense of the sheer scale of the event:

A procession of 160,000 people led the hearse, pulled by 16 gray horses, to City Hall. For three days, the city literally shut down as hundreds of thousands of people poured into its streets, most of them content to get a glimpse of the president’s hearse and coffin, as the viewing of the man himself was almost beyond possibility.⁷

The building was adorned with black streamers and a banner that read “The Nation Mourns” (Figure 1.2). A 1915 report by the American Scenic and Historic Preservation Society detailed the honoring of the dead sailors from the Vera Cruz at City Hall,⁸ saying that the location for the event was

a natural and instinctive expression of the place which the City Hall holds in the public mind … here is focused the sentiment of five and a half million people … here they have come to celebrate their military triumphs, civic achievements and great anniversaries.⁹

In 1952 the steps became a replica of the prow of the Flying Enterprise, festooned with red, white, and blue bunting to welcome the “intrepid skipper” who refused to abandon his freighter as it sank in the North Atlantic (Figure 1.3).¹⁰ The Danish skipper who had attracted worldwide attention for his tenacity was received in New York by Mayor Impellitteri and was given the Medal of Honor of the city of New York.¹¹ In 1981 hundreds of thousands of people greeted the freed American hostages who returned from Iran during a procession from the Battery to City Hall.¹² In 1984 the steps and plaza were used for an amateur heavy-weight exhibition boxing match and an awards ceremony for the Joe Louis Memorial Scholarship, and a “grand send-off for athletes en route to the U.S. Youth Games.”¹³ The steps are the symbolic entrance and exit to the city, where worthies are welcomed and representatives are anointed before representing the city on their voyages. The worthies also “give” something to the iconic history of City Hall and to the current government: a little of their luster rubs off.

A more recent photograph of City Hall offers an entry point into the relationships between public forums, public spaces, and law (Figure 1.4). The photo shows twenty-five people standing on each of the eleven steps of City Hall in rows four abreast. Each person holds a sheet of bluish green 11 × 17–inch paper printed with a number in giant type. No other signs, buttons, or banners are visible: just the numbers 1 through 25. The plaza in front of them is empty except for a security person and a truck. The group takes up about one-sixteenth of the expanse of steps; they look small against the backdrop of the building. If you hold the 4 × 6–inch photo in your hand, you could easily and completely cover the group with your thumb and still be left with an uninterrupted view of the steps and the building. The date stamped on the back of the print is July 16, 1998.

What appears to be a photograph of the most enigmatic protest ever held is actually a piece of evidence produced by the New York Civil Liberties Union (NYCLU) for their client, Housing Works. As an image it is puzzling. As a piece of evidence it is rather brilliant. The photo illustrates one of the NYCLU’s main arguments: that Mayor Giuliani and Police Department Commissioner Howard Safir denied Housing Works the opportunity to speak from the steps by making false claims about how many people could safely gather there.

Law, Speech, and Public Space

Before examining the Housing Works cases, it is important to discuss the relationships between public spaces and the right to free speech. Examining controls on speech in public spaces and challenges to these controls requires a combination of spatial, historical, policy, and legal analysis. While there is no legal definition of public space, there are three points of law governing free speech that also set out basic relationships between speech and space.

First, public spaces such as streets, sidewalks, and parks have, relative to the First Amendment, special status as traditional public forums where one’s right to speak is guaranteed. The court case that describes traditional public forums is Hague v. Committee for Industrial Organization 307 U.S. 496 (1939). Hague sets out streets and parks as a central part of civic life

(w)herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

It is important to note that Hague does not refer specifically to public spaces, rather to a set of landscape types that are typically thought of as types of public spaces: streets, parks, and public places. Hague deems traditional public forums as fundamental to democracy.

Second, while speech in traditional public forums is a protected activity, it is also a regulated activity. In the same paragraph in which Hague discusses traditional public forums and the right to speak there, he goes on to argue that even in these places speech may be regulated:

The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Put differently, while the content of speech cannot be regulated in public forums, the time, location, and manner of the act of speech can be regulated. Hague acknowledges that regulation of speech can be used to suppress speech, particularly by “Directors of Safety.”¹⁴ As Don Mitchell has argued, controls on time, place, and manner are much more effective than outright censorship. They are harder to argue against. They are complicated to sniff out. We are so attached to the idea of decorum that we have in some ways accepted peace and quiet as substitutes for social justice. We are so attached to freedom of speech as simply the freedom to say what you want that we have forgotten that speech must have an audience—the right audience—to be effective.

Different locations within a city are more or less “charged”; that is, buildings like City Hall and main thoroughfares like Broadway carry more representational weight than the sidewalks around their perimeters. Events that take place in such locations appear to be more mainstream than events that take place in “marginal” locations. Depending on the time of an event, there will be significantly more onlookers. Controlling the time also controls the duration of an event. An all-night vigil during which participants “sleep” on sidewalks presents a powerful message regarding homelessness. The steps of City Hall are politically charged because of their proximity to seats of government, their history as important sites of representation, and their visually symbolic designs. In the realm of the civic geography of New York City, City Hall remains the location for important public messages. It is both the actual place where decisions are made and the symbolic heart of the city. The steps are a kind of liminal space between the inside of the building and the outside—or the larger city itself. Conflicts over speech in such places are inevitable.

Third, any rules set up governing traditional public forums must “(1) be content neutral, (2) be narrowly tailored to meet a significant government interest, and (3) leave open ample alternative means for communication.”¹⁵ Proving that rules set out to govern a traditional public forum are content neutral involves proving that all groups who try to speak from a particular location have been subject to the same regulations regardless of the content of their message. Proving that rules are narrowly tailored involves an analysis of why certain rules are enacted. Most often rules are created to address issues of safety and security. Proving that there are alternative sites available for speech acts can be interpreted to mean that an alternative site has the same political potency as the original. Arguably, there is no alternative site for speaking out against city policy than from the front of City Hall itself.

Housing Works’ legal battles over the steps of City Hall show how government agencies use the time, location, and manner doctrine to limit the speech acts of groups with which they disagree. Using the authority afforded them by the doctrine, the mayor and police commissioner blocked, shrank, and pushed off to the side Housing Works’ press conferences. While the front steps of a city hall do not fall under Hague’s category of streets, sidewalks, and parks, the more than 200 years of use of the steps as a public forum shows their vital importance as a platform for speech: both for messages from City Hall to New Yorkers and for messages from New Yorkers to City Hall. Giuliani held events on the steps to bolster his public image. Housing Works sought to use the same location to tie the suffering caused by Giuliani’s policies directly to the mayor—to shift his image from representative of the public body to that of a criminal responsible for the death of thousands of New Yorkers.

Housing Works’ Fight for the Steps

The battles over the front steps of City Hall between Mayor Giuliani¹⁶ and Housing Works took place over four years.¹⁷ The story of the conflicts between Housing Works and the city indicates that regulations on speech can be used repeatedly to block unwanted messages and, therefore, challenges to controls on speech must be persistent and ongoing. It shows the vulnerability of public forums to controls, but also indicates ways in which speech can be defended in public forums. Since the Housing Works cases involved more than one incident, we can see how the mayor’s office and the police commissioner responded to a group’s ongoing policy challenges. It was not a one-time denial of access based on a particular reason; rather, the administration tweaked its policies and enforcement patterns in response to legal challenges and, almost without exception, the way they tweaked these policies related to spatial controls on the speech—that is, they regulated how bodies were allowed to occupy the space. By limiting the number of people engaged in the speech activity, the administration sought to diminish the perceived strength and importance of the message. Each change they made to regulations further tested the limits of the use of spatial controls on speech and the degree to which a place’s design—its size and configuration—was able to support acts of speech.

A parallel set of events on the steps of City Hall that took place during the time of the Housing Works lawsuits emphasizes the importance of the steps as a site of representation for the mayor himself. During his tenure as mayor, Giuliani, like mayors before him, used the steps and the facade of City Hall as a backdrop for the construction of his public image—an image frequently at odds with his own policies and declarations about what constitutes good citizenship and good leadership. Giuliani was a mayor many New Yorkers loved to hate. Animosity toward the mayor came from many camps, including nonprofits angered by his cuts to social services such as Housing Works, and also from city workers, including police, teachers, nurses, and construction and sanitation workers, who faced wage freezes during a time of budget surpluses.

The criticisms that Housing Works launched against the mayor were more damning than those of city workers, and Giuliani’s desire to separate Housing Works’ message from his image was arguably more acute. Housing Works argued that the mayor’s cuts to funding for people with AIDS fueled the spread of the disease and sped the deaths of those who suffered from it. While signs at a teacher’s rally against wage freezes read “Hey Rudy, Shake Your Booty,” and demanded increased funding for schools and teachers (Figure 1.5), signs at a Housing Works press conference featured signs of Giuliani’s face stamped with the label “AIDS Criminal” in red ink.¹⁸

It is not surprising that Giuliani would prefer this “AIDS Criminal” image not be broadcast in front of his offices. In fact, Giuliani viewed not being “disturbed, harassed or abused” by others as a right that should be protected by the law. In a 1996 speech titled “The Next Phase of Quality of Life: Creating a More Civil City,” Giuliani berated the “cynics” of his programs and policies.¹⁹ (We can imagine that Housing Works falls into this category of “cynics.” Giuliani stated that “optimism” promoted “quality of life.”) He also argued that focusing energy and resources on punishing people who diminished “quality of life”²⁰ would prevent “more serious antisocial behavior.” Giuliani pledged to work to make people act in a dignified way toward each other, because “inconsiderate behavior leads to disorder.” For example, he argued that while graffiti and murder are “vastly different crimes,” they were nonetheless part of the “same continuum.” With such a warped sense of what constitutes a right and what constitutes a violation of a right, it should be unsurprising that Giuliani frequently found himself in court. Many groups and individuals found reason to be cynical of Giuliani’s policies and sought to deliver their message with City Hall as their backdrop. The NYCLU participated in thirty-three First Amendment cases against the mayor, prevailing either entirely or in part in twenty-four of those cases.²¹ Several cases were filed on behalf of Housing Works beginning in July 1998 and extending after Giuliani’s term in office ended in 2001.

In July 1998, the police department rejected a request by Housing Works to hold a press conference on the steps of City Hall. Housing Works planned the event to coincide with the first anniversary of the 1997 passage of Local Law 49, which created the New York City Division of AIDS Services and which required that the city provide certain services to New Yorkers afflicted with AIDS and HIV. During the press conference, Housing Works intended to release a new report that “documented the City’s failure to provide these services.”²² Charles King, co–executive director of Housing Works, said that his group wanted to use the City Hall site because “that was where Mr. Giuliani signed a law one year ago that was designed to improve services to people with AIDS.”²³ Housing Works stated that the event would last an hour or less and would involve up to fifty people.

The police department denied Housing Works’ request, citing an April 1994 memorandum that limited the number of people who could be present at such events to twenty-five people for reasons of “safety and security.”²⁴ The NYCLU argued that this policy was not uniformly enforced. They noted that between January 1, 1995, and July 1998, there were at least fifty-three city-sponsored events that occurred directly in front of City Hall and that most of these events involved more than fifty people.²⁵ For example, in May 1998, to celebrate New York Yankees pitcher David Wells’s perfect game, the mayor held a rally involving about 300 people.²⁶ On October 29, 1996, thousands of New Yorkers gathered at a City Hall–sponsored celebration of the New York Yankees’ World Series victory, at which the mayor issued a proclamation naming the day “New York Yankees Day.”²⁷ This particular celebration at City Hall was preceded by what was considered by many to have been the biggest sports parade in the city’s history. Giuliani himself announced that more than 3.5 million people came out for the parade. This estimate may have been “based more on civic pride than reality,” according to the Toronto Star,²⁸ and “could have been accommodated only if quite a few fans were lying crushed underfoot,” according to the New York Times.²⁹ However, photographs of the event at City Hall showed the steps packed with people, including the mayor, the Rockettes, the Yankees, and fans. The plaza in front of the steps was also filled (Figure 1.6).³⁰

In his opinion, Judge Baer stated that the city appeared to have “unbridled discretion to grant exceptions” and could arguably “grant exceptions to those groups whose speech it agrees with and deny exceptions to those groups whose speech it disagrees with.” Baer noted the importance of the site in the geography of civic places in New York, and stated that the steps have “a symbolic importance that City Hall Park does not.” Baer made specific reference to the NYCLU photos of the group of twenty-five on the steps, stating that that group demonstrated “beyond peradventure” that the front steps of City Hall were so large that groups greater than twenty-five would not cause “significant congestion,” and would “allow for ample ingress and egress.” Put differently, the steps, because of their design, were well suited to acts of speech involving groups of people. Baer also added that when compared with the population of New York, “a group of 25 people does not even begin to provide a fair cross-section of those in our community who are likely to be interested in attending and participating in a particular press conference.” Baer granted Housing Works a preliminary injunction against the city, and the city was ordered to allow the event to take place with fewer than fifty people.³¹ Housing Works held their event on July 22, 1998, without incident.

The evidence presented in this case shows that the mayor and the police commissioner did indeed selectively enforce controls on speech activities based on the content of the speech. Prior to Housing Works’ request for the press conference, the organization had already been an outspoken critic of the mayor’s health policies. The mayor had every reason to expect that Housing Works’ press conference and report would publicly tie him to the deaths of New Yorkers made homeless at a time of great physical and, one can imagine, great emotional vulnerability.

Baer’s opinion highlights the way in which the police commissioner and the mayor used safety and security as screens for controlling the content of messages delivered from the steps. He also argued that limiting groups to twenty-five people was unfounded when compared to the actual capacity of the steps and that such a limited number of individuals could not adequately represent a concerned community. Put differently, the physical scale of the protest would be insufficient to symbolically represent the actual number of people affected by a city-wide policy. It is important to note that Giuliani and Safir did not deny Housing Works access entirely, but rather sought to lessen the impact of their event by reducing the number of participants. Events with large numbers of people indicate broad support. Those with few people, particularly against a backdrop the size of City Hall, appear to have little support. By extension, the issues themselves seem less important. When it comes to speech, size matters. Limits on the number of participants are also limits on the perceived legitimacy of the message itself.

During 1998 and 1999, the mayor and the police commissioner continued to rewrite and selectively enforce policies regarding press conferences on the steps of City Hall, and Housing Works continued to challenge their actions in the courts. In late August 1998, New York City officials tightened security around City Hall in response to the United States’ bombing targets in Sudan and Afghanistan. Concrete barricades were positioned around the building and police cars were used to block access to the parking lot. Only those people who could prove they had business in City Hall were allowed through the barricade. In August or September 1998 the city adopted a new policy banning all events from the steps of City Hall. While security seems an incontestable concern, how does one weigh it against concerns regarding the closure of an important public forum, arguably the most important public forum in New York? This question proved to be irrelevant in light of the mayor’s subsequent actions and his seemingly cavalier attitude toward safety and security on the steps. In October 1998,³² Mayor Giuliani and Police Commissioner Howard Safir gave permission for a victory celebration for the New York Yankees. The mayor wore a Yankees jacket and cap and waved to the crowds from the center of the float as it traveled down the Canyon of Heroes to a ceremony at City Hall.³³ During the celebration, the police permitted between 5,000 and 6,000 people to occupy the steps. The event took place over the course of a day, from about 9:00 AM to 3:00 PM.³⁴

Clearly, celebrating the Yankees’ victory and linking the Yankees’ elevated status to City Hall and to Mayor Giuliani’s career was more important than protecting City Hall from possible terrorist activities or than ensuring safe evacuation routes in case of an emergency. Yet, less than one month after the celebration, the mayor and police commissioner played the safety-and-security card again when they refused to allow Housing Works to hold an event on December 1 “at or near the steps of City Hall” to commemorate World AIDS Day. In an attempt to protect the city from litigation regarding its refusal to allow the event, the city immediately drew up a new policy to govern the use of the steps.³⁵ The policy was clearly self-serving. It protected events that bolstered the image of the mayor, and gave great powers to the executive branch of city government to decide what happens on the steps and when. The new policy prohibited all events from taking place on the steps with the following exceptions:

The Police Commissioner may authorize the use by the City of the City Hall plaza and step areas for ceremonial occasions (1) of extraordinary public interest, (2) which are uniquely appropriate to City Hall, (3) during which the regular business of City Hall may be suspended or curtailed and City Hall otherwise closed to the general public, (4) which are unique, non-annual events of major civic and City-wide importance (e.g. inaugurations and events honoring national military triumphs, space exploration, extraordinary national or world leaders or local World Championship teams), and (5) which require a ticket for entry, provided the Police Commissioner or his designee determines that adequate provisions for security can be made in light of the extraordinary security concerns outlined above.³⁶

While the policy’s reference to “space exploration” might seem odd, it made sense in light of the fact that a week after the day the policy was written the city held, for John Glenn and other crew members of the space shuttle Discovery, a parade down the Canyon of Heroes and a large ceremony on the steps of City Hall. The city distributed about 3,000 tickets for the event, and people who attended had similar access to the steps of City Hall as did those who attended the Yankees’ celebration the month before.³⁷

Housing Works and the NYCLU applied again for an injunction through the courts, this time seeking permission to hold their World AIDS Day event. The injunction was granted on November 24, 1998.³⁸ Housing Works held their press conference on December first; however, within the geography of City Hall, Housing Works and their message were pushed to the margins. Housing Works was not allowed access to the steps at all. Instead, the police department required them to hold their event in a parking lot. The police department also used metal barricades to make an enclosure for a speaker’s area that could hold about fifty people, and a separate enclosure for about 200 people participating in the rally and demonstration. Police required participants to stay in their “pens.”³⁹

Over the next six months, the city repeatedly violated its own policy by allowing four press conferences to take place on the steps. The NYPD was present at all of these events and did not prevent the events from taking place even though they violated policy. No barricades were used at any of the press conferences.

A similar set of events unfolded in 1999. The mayor made adjustments to his policy regarding the steps, and the police commissioner enforced the policy unevenly. Housing Works continued to be treated exceptionally, and responded to this treatment via legal avenues. The mayor in turn made minor adjustments to the policy. For example, in February 1999 Housing Works filed for summary judgment based on the grounds that the policy was unconstitutional.⁴⁰ Two days after Housing Works filed for summary judgment, the city amended their November policy, making the following additions: everyone entering the City Hall area should be subject to search, events taking place in the plaza area should be limited to fifty people, and members of the City Council can hold events on the steps of City Hall as long as there are no more than fifty people.⁴¹ They added that if there were a specific security threat “City Hall steps and plaza area may be subject to additional restrictions or closure.”⁴² Under this policy, no events could take place on the steps unless either the mayor or a member of the City Council sponsored the event; in other words, unless the message were sanctioned by someone inside City Hall.⁴³

On Tuesday, March 16, 1999, the NYCLU informed the city that Housing Works intended to hold a press conference and demonstration at City Hall and that the event was not sponsored by a member of the City Council. The NYPD stated it would not allow the event to take place on the steps of City Hall. The rally and press conference were held March 23, and criticized Mayor Giuliani’s policies regarding AIDS policies. The NYPD required Housing Works to hold their event in the part of the City Hall parking lot that was farthest away from City Hall itself. They were also surrounded by metal barricades.⁴⁴

One week after the press conference and rally, Housing Works informed the city that it intended to file a summary judgment motion against the amended policy because it stipulated that only events sponsored by a member of the City Council could be held on the front steps of City Hall.⁴⁵ The city suspended the policy for ninety days. Events that were not sponsored by a member of the City Council but were deemed by the mayor to be of “extraordinary public interest” were allowed to take place on the steps. However, those that were not deemed by the mayor as such were limited to fifty people and could last for no more than one hour. During this ninety-day period, many press conferences took place on the steps with “no incident.”⁴⁶

In June 1999 the city informed the court of their new rules regarding events at or near the steps of City Hall, limiting the number of people who could attend an event there to fifty:

excluding public ceremonies and commemorations, inaugurations, award ceremonies, celebrations, festivals, and similar events that have traditionally been organized or sponsored by the City of New York and administered by the Department of Citywide Administrative Services and/or the Department of Parks and Recreation.⁴⁷

Housing Works planned an event for late September 1999 at which it was set to release a new report that described the city’s failure to conform to a law that required the city to provide housing to individuals with AIDS. Housing Works also planned to have clients of the Division of AIDS Services speak out at the demonstration. Housing Works argued that the location of the demonstration was important. It wanted clients to have the opportunity to “symbolically directly tell the Mayor of the impact of his failure to implement the law on their lives.”⁴⁸ Charles King added:

we feel that this is very specifically, this administration and more specifically the Mayor’s duty to ensure that the law is properly carried out and that the Mayor has made a deliberate decision not to implement the law, and so we want to come to him directly and point this failure out to him in a very public way. At the same time, we want to catch the attention of the City Council that is also housed in City Hall. They enacted this law very specifically because the Giuliani administration had proposed the elimination of the Division of AIDS Services and the elimination of services that the division was providing at the time. So they enacted the law to force the administration to continue to provide those services and to provide them adequately, and we want the City Council to know that the Mayor isn’t doing that.⁴⁹

Mr. King argued that by limiting the size of the press conference, the mayor was effectively controlling how the event would be perceived publicly: “Obviously, the fewer people you can muster to come out for an event, the less seriously the event is treated by the press, the less seriously it is treated by the administration and other targeted audiences.”⁵⁰ Consistent with this concern, Mr. King testified that the mayor was quoted in the papers gloating that only 250 people attended the December 1, 1998, World AIDS Day event.⁵¹ Defending the city’s use of enclosures for relatively small crowds, the mayor quipped, “(w)e can’t help it if these people exaggerate their turnout.”⁵² Not only did the mayor’s strategy of marginalizing and shrinking Housing Works’ press conference work, but the mayor also represented the Housing Works event to the press as if the reason the turnout was so low was because the organization did not have the support base it purported.

When Housing Works took Giuliani and Safir to court, the NYCLU presented three ways in which the policy was unconstitutional. First, judging events as either of “extraordinary public interest” or not, it “explicitly and impermissibly” allowed differential treatment of speakers based on the content of their speech. It was not just that the mayor decided what was or was not of “extraordinary public interest” but that he judged the content of the speech and treated speakers differently based on that content. Housing Works also argued that the policy was unconstitutional because it had no “specific, objective and definite standards required of licensing schemes.”⁵³ It argued finally that the limit of events to only fifty people was not “narrowly tailored to the defendants’ legitimate interests,” or, in other words, the policy did not give specific and legitimate reasons for this number. The NYCLU anticipated that the city would argue that the legitimate interest of having only fifty was security-related (this lawsuit took place before 9/11 but after the Oklahoma City bombings). However, the NYCLU argued that the city had stated that “[n]either the NYPD nor the FBI has received any information suggesting that City Hall specifically is the intended target of any terrorist activity.” They also noted that the city already required all those participating in protests at City Hall to pass through metal detectors and advised protesters that they may have their bags searched. They added:

[t]he plaintiff fully recognizes that there are dangers in the world that justify unusual measures in some circumstances but respectfully submits that one of the greatest dangers in a democratic society such as ours occurs when the government uses undifferentiated allegations of security and “terrorism” to suppress the rights of peaceful assembly and protest. That is what the City is doing in this case, and the First Amendment does not permit that.⁵⁴

The judge ruled in favor of Housing Works.⁵⁵

While it is beyond the scope of this chapter to discuss all the cases filed against Giuliani by Housing Works,⁵⁶ the most recent case, decided in May 2005, marks not only the end of the litigation against the former mayor but also shows the extent to which Giuliani was willing to go not only to block or weaken Housing Works’ messages but also to weaken the organization itself. The case found that beginning in 1997, Giuliani punished Housing Works for criticism of himself, his aides, and his policies by cutting Housing Works’ government contracts to provide housing and services to people with HIV/AIDS.⁵⁷ As a result of the May 2005 ruling, Housing Works is to receive $4.8 million in damages, lawyers’ fees, and interest.

The Housing Works cases show that public officials can control speech in public spaces—even in those spaces whose designs appear ideally suited to such activities. However, the cases also point to methods for maintaining public spaces as dynamic and vital sites for democratic action. An understanding of the former is necessary for the latter. While the right to speak in a public space is not absolute, neither are the regulations or enforcement attempts by elected officials or police. The courts are crucial sites in these ongoing processes. But cases can be fought only in response to the enforcement of regulation. Unless regulation restricting speech in public spaces is constantly tested, it will remain. Those seeking to protect their right to speak in public forums must keep record of shifting policies and the unevenness of enforcement of those policies. They must also have access to legal representation and be ready to spend a great deal of time in court.

Understanding the law, monitoring its enforcement, testing it by engaging in speech acts, and litigating to ensure access—this is the process by which public spaces are protected as sites for public spheres. Each step in the process is dependant on the other steps. Without this process, there is no necessary connection between democratic action and public space. This process is costly. For Housing Works, these costs came as staff time and lawyers fees and as the (temporary) suspension of government contracts. Housing Works could have used these resources to better serve their clients. The NYCLU also spent resources that might have funded other projects.

But the near-constant litigation cost Giuliani very little. He is no longer mayor. The city will be forced to pay the settlement, not Giuliani personally. Faced with the opportunity of punishing a stalwart critic at little personal risk, Giuliani chose to limit Housing Works’ access to City Hall and he turned a blind eye when one of his appointees further punished the organization by cutting their city contracts. In doing so, he sought to silence an organization and indirectly to silence all the people on whose behalf the organization spoke: the most vulnerable New Yorkers, those who were dying and had no place to live, who suffered as a result of Giuliani’s cuts to public programs and had no place in the image of the city Giuliani was manufacturing—an image directly tied to his own personal image. Giuliani made room on the steps only for healthy, uncritical, or profitable bodies, opening the Canyon of Heroes and welcoming them to wave with him from New York’s civic heart.

The photo of the twenty-five people on the steps of City Hall captures one moment in an ongoing battle. It demonstrates the illegality of the enforcement of limits on how many people can speak from this public platform. Speech acts in public spaces challenge efforts to limit who can speak, maintaining the vibrancy of public forums. But the image also reminds us that the public is not a uniform entity. Controls on who speaks in public forums are also controls on who appears as part of the public. Housing Works’ message was twofold: that people who have HIV/AIDS and are homeless are part of New York’s public, and, as Sander Gilman has argued, that representations of those suffering from HIV/AIDS “mark the function and place of the sufferer in relation to the society in which he or she dwells.”⁵⁸ People with HIV/AIDS are subject to societal fantasies used to “create a boundary between ourselves and the afflicted … to distance and isolate those we designate as ill.”⁵⁹ By cutting funding to provide people with HIV/AIDS access to private spaces of the home and by actively thwarting their attempts to appear in public, it could be argued that Giuliani sought their double erasure.⁶⁰ It also reminds us that public spaces and private spaces are linked: in this case, through public policy.

At the World AIDS Day vigil on December 1, 2004, in City Hall Park, volunteers read the names of the more than 80,000 known to have died from AIDS in New York City.⁶¹ The reading took place over a twenty-four-hour period that began at midnight. Volunteers took turns speaking from four platforms set up in a semicircle (Figure 1.7). One volunteer read the names in sign language. As each name was announced, statistics were transformed into individuals who were each remembered twice: once by the reader and once by the listener. Each name was heard for a brief moment. The event was not a permanent memorial.

The Smithsonian National Museum of American History includes in their 9/11 collection items of clothing that belonged to Mayor Giuliani: the boots he wore to the site, a baseball cap, and two jackets. His boots are captioned “The mayor’s leadership helped New York City recover and rebuild.”⁶² Giuliani’s work in the months following the attacks was exemplary. But perhaps the Smithsonian should cross-reference this exhibit with Giuliani’s efforts to thwart the First Amendment at City Hall and with the $4.8 million bill he left for New Yorkers to pay.⁶³

The next chapter examines Federal Plaza, a government-owned space tied to an important government building, and officials’ attempts to control what happens there and therefore who its public is. But unlike the case of the steps at City Hall, at Federal Plaza, regulation was not the tool of choice. Instead, officials used design.