What Happens to the Right of Public Assembly in the Absence of Public Space?

What Happens to the Right of Public Assembly in the Absence of Public Space?

What Happens to the Right of Public Assembly in the Absence of Public Space?

The mentality of traffic engineering cripples mass transit, and free speech, in New York City.


There is no shortage of egos in New York. One of them has a huge desire to be president. On October 10, two others, Governor Andrew Cuomo and New York City Mayor Bill de Blasio, put aside their long-simmering acrimony and agreed on a plan for sharing the costs of the Metropolitan Transportation Authority’s current five-year, $29 billion capital plan.

With apologies to the world’s forests, I printed a copy of the plan and found it to be encouraging, and depressing. Those billions are primarily intended to keep the system in a functional state of repair in all of its inspirational, if spotty, vastness. Much sleek new rolling stock is to be acquired, but it will mostly replace railcars and buses that have reached the end of the line. Only 20 of the system’s 469 subway stations will be renovated. A fair amount of money is earmarked for a couple of long-underway projects that extend the system, including the Second Avenue subway—first proposed in 1919. Service is predicted to commence on a stretch of that line next year, although, as part of the deal, it will stop at 96th Street, with completion of the vital segment to 125th Street delayed until at least 2020 (perhaps some of El Chapo’s people are available to accelerate the job). The other big addition is the East Side Access tunnel that will enable Long Island Rail Road trains to stop at Grand Central Terminal, not simply Penn Station. Altogether, “improvement”—as opposed to replacement and repair—amounts to 14 percent of the budget, a respectable sum for a big, old, and long-neglected operation.

Yet for all its urgent remediation of a mass-transit network marvelous in its extent, the plan’s overall philosophy is miserly. The MTA has once again bypassed literal and conceptual expansion of the system in the name of “necessity.” It’s a plan for people accustomed to hearing the word “crumbling” right before the word “infrastructure,” and for politicians who tend to look at capital expenditure on mass transit as either a jobs program (shovel-ready!) or the means of securing the continued viability of a system ever at the point of collapse. It’s also a plan for people who don’t question why the private car is still the engine of our national transportation budget. The fracas between New York State and New Jersey over the construction of a new railway tube under the Hudson River, stymied for years by the shortsightedness (masquerading as fiscal responsibility) of Governor Chris Christie, is an especially egregious example of the foolishness by which any big non-highway public project is held hostage. In China, Japan, and Europe, super-fast trains zip from town to town, while Amtrak improvements here are perennially derailed. Shanghai alone has built over 340 miles of subway track since 1986; it took New York City 25 years to extend the No. 7 train by one stop.

The MTA’s capital plan is also informed by the mentality of traffic engineering, of simply getting people from place to place rather than getting them together: the real basis for mobility. Seeing cities as vast engines of economic productivity, the traffic priesthood reduces the traveling subject to no more than a package to be speeded on its way as economically as possible. The airlines subtract another inch between seats, subway stations grow ever grottier, and the mediocrity of their design—in one of the world capitals of creativity—becomes more of an affront every day. I’m charmed to see sweet art by Tom Otterness at the 14th Street A, C, E, and L stop, but I’d sooner the station were clean and well ventilated.

Though it’s the work of an old guard, the MTA plan announces itself with some research that would make a remarkably compelling case for expanded investment and the creation of an even larger system. It presents the familiar—if seemingly counter­intuitive—statistic that the most energy-efficient state in the union per capita is New York, despite its inclemencies of climate and being home to the most voracious consuming class outside the Saudi royal family or the Kardashians. This is true for only one reason: the wildly disproportionate—and rapidly increasing—use of public transportation by its denizens. New York City’s low rates of car ownership and its predilection for mass transit translate regionally into an annual reduction in greenhouse-gas emissions of some 17 million metric tons, a benefit equivalent to planting 24 million trees.

In his delightful new book Street Smart (Public Affairs; $26.99), Samuel “Gridlock Sam” Schwartz attributes the brisk national rise in mass-transit use over the past decade (and the corollary decline in the use of private cars) to a particular cultural shift, which he identifies with the so-called millennial generation. The statistics are persuasive, but the cultural account—millennials disgusted with suburban numbness and endorsing their own parents’ complaints about cars—not so much. Never mind: There’s little doubt that postwar youth—a historical concept that must surely embrace us boomers—have acquired a special connection to cities as loci of consumption and conviviality, as antidotes to specifically suburban forms of alienation and anomie, and, most critically, as places where the collective practices of democracy are best enabled. While millennials may be especially adept at forms of digital assembly, the evidence—from Tahrir Square to Sherry Turkle—seems to be that Twitter merely facilitates the real action, which takes place face to face, and that, in the end, exclusively digital communication is having dire effects on deep sociability and its engendered politics.

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The de Blasio/Cuomo deal was negotiated during the mayor’s short-lived attempt to rip up the pedestrian precinct that has transformed Times Square into an actual permanent public square for the first time in its history. Six years ago, de Blasio’s predecessor, Michael Bloomberg (and his remarkably enlightened transportation commissioner, Janette Sadik-Khan), remade the area’s congested streets by installing plazas, first delimited by beach chairs, picnic tables, and planters, now durably paved in stone. Not only did the plazas attract crowds of sitters and strollers; they effectively reduced accidents and increased retail sales and real-estate values around Times Square’s periphery. Weirdly, when this remarkable public gesture attracted actual public use—including a proliferation of street performers—de Blasio saw a public nuisance and concluded that the plazas had to go. But the mayor was after more than expelling the buskers. Hectored by Police Commissioner William Bratton, he wanted to give Times Square back to cars!

New York City and its region have inherited a serious problem: Its facilitators of mobility—the MTA, DOT, TLC, Amtrak, Parks, Uber, Lyft, BIDs, NJ Transit, bus lines galore, private cars, Citi Bikes, private bikes, ferries, helicopters, planes, elevators, and on and on—operate as fiefdoms. Modal diversity is critical to a metropolis as complex as New York, but the failure of coordination is pathological (tried to go to LaGuardia Airport lately? Across Brooklyn?), and it surely harks back both to the private, competitive origins of virtually all of these systems, and to the history of aggrandizement (and control of revenues) brought to such a state of dictatorial perfection by Robert Moses. Why must so much of our streets be used to store private vehicles? Why can’t we regulate the numbers that enter our gridlocked centers? Why must a cyclist take her life in her hands to peddle down the block?

There is one absolute in the creation of good city form: giving pride of place to people on foot. The reason is not simply to maximize individual autonomy (of course, mere human locomotion must be abetted by freedom of movement and access), but also to assert that the human body remains a fundamental constituent of the body politic, and that any impediment to our capacity to gather must be viewed with the deepest suspicion in any part of the city that is public, that belongs to us all. This is not to confuse public space with absolute sanctuary for any activity, although the prejudice must always be for latitude rather than constraint—in general, behavior in public can, as the Supreme Court has repeatedly affirmed, be subject to restrictions in “time, place, and manner.” Fighting words, obscenity, too much noise late at night, “purely” commercial activity, mugging: These and other departures exceed the automatic perquisites of public space, although the Court has shown both confusion and nuance in parsing this. (For example, it held in 1943 that the litter that arises in consequence of leafletting is not sufficient grounds for curbing this form of speech.)

Perhaps the most frequently cited of the Court’s opinions affirming the right of assembly is Cox v. Louisiana, decided in 1965. That case arose from a picket organized by a group of civil-rights demonstrators four years earlier. The Rev. B. Elton Cox staged the protest in front of a Baton Rouge courthouse where a group of students was being held after their arrest for picketing a segregated restaurant downtown. The protest was at a legally designated remove from the building itself. The protesters and the students joined their voices in song, Cox gave a speech, the sheriff ordered the demonstration dispersed, and, when nobody left, cops teargassed the crowd. Cox was arrested, tried, and convicted of breaching the peace.

The Court, in overturning the verdict, defended the use of public streets as sites for assembly and the exercise of free speech, but it also affirmed the viability of certain restrictions concerning time, place, and manner. Indeed, the majority opinion, written by Justice Arthur Goldberg, stated that no one may “insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech.” The case is controversial: The Court split 5–4 and delivered a particularly fractured decision that, according to a much-cited analysis by the late Harry Kalven Jr., “bristled with cautions and with a lack of sympathy for such forms of protest.” Interestingly, the majority expressed special concern about the implications of the case for labor-union rights to picket on public property (Justices Hugo Black and Tom Clark cited this specifically, and Goldberg had previously served as counsel to the AFL-CIO).

Kalven writes that the core of the case concerned the question of “whether the citizen using the street as a forum and not as a passageway is making an anomalous use of it.” This particular conundrum of appropriate use reached a level of special and especially germane dementia in the mid-1960s, when a number of Las Vegas casino owners—­including Kirk Kerkorian, Steve Wynn, and that celebrated civil libertarian, Sheldon Adelson—attempted to eliminate public sidewalks in front of their establishments, replacing them in some cases with private sidewalks. They did so largely to thwart labor demonstrations against the non-union shops they were seeking to impose. Indeed, Kerkorian’s MGM Grand, after persuading the Clark County Commission to allow it to privatize its sidewalks, almost immediately had union demonstrators arrested for “trespass.” It’s a story that kept repeating itself in front of the Mirage, Treasure Island, and the Venetian, but with results ultimately frustrating to union-busting management, because the federal courts have consistently ruled, on First Amendment grounds, that attempts to distinguish public and private sidewalks (when, in each instance, they are the only sidewalks) are unconstitutional. The still-definitive ruling was handed down in 2001 by the Ninth Circuit in a case brought by the ACLU against the Venetian.

However, the sidewalk struggles in Vegas continue. Both the casinos and the municipality are trying to figure out a way to banish a cohort slightly more pertinent to the Times Square issue: people handing out leaflets advertising sex services, a shocking affront to the wannabe-family-friendly aura of the new Vegas. Privatizing—or eliminating—­sidewalks was the initial approach, but, to date, this has been thwarted by the courts. Other strategies have been contemplated, including attempting to use the 2000 Hill v. Colorado decision—which regulated aggressive leafleting in front of abortion clinics via the imposition of an “eight-foot rule”—but this seems a fatuous gambit. And there are various tricky openings in the laws governing restrictions on commercial speech that will doubtless be explored.

* * *

Which brings me back to Times Square: I cross it reasonably often and must admit that I have never been approached by Elmo, Minnie, or any of those desnudas the mayor got himself into such a lather about. If Nazis can parade in Skokie, why is our “progressive” mayor so worried about the Cookie Monster or the Naked Cowboy? The rumpus does seem an especially ironic recapitulation: Sex is back, sort of, on the Deuce, repackaged for family fun. And after we’ve railed for years about the Disneyfication of the place, the concern that politicians are showing over the presence of people dressed as Mickey Mouse is a bit rich. Finally, the idea of striking a blow against crass commercialism at its very epicenter can only be seen as an assault on the crassness of the small fry on behalf of the supersized. No doubt the city’s legal eagles will eventually find a way to excise these prurient affronts.

But there seems to be something beyond prurience that caused de Blasio and Bratton to go Vegas. Times Square is not only the beloved “Crossroads of the World,” but also an intense nexus of public-transit accessibility (and curses on the truly crappy, incoherent, interminable, and incomplete “renovation” of the 42nd Street station—which doesn’t rise to the level of the public restrooms on the Jersey Turnpike), and the mayor’s attempt to wipe out the ground-­level space of assembly was simply antidemocratic. The reflexive impulse to curb speech by eliminating the space of public assembly both diminishes liberty and thwarts the progress made under Bloomberg in the direction of a system of movement and access that places walkers further toward the top of the mix of motion and rest. De Blasio and Bratton forgot an important lesson: What happens in Vegas should stay in Vegas.

The Times Square episode also reflects the myopic failures of coordination in the way the city is planned. The Department of City Planning does nothing but zone; the city’s Department of Transportation seems to have lost the will to reconfigure our streets and sidewalks to abet walkers and bikers; the MTA is barely able to keep the system in a reasonable state of repair; and the sums spent on three glossy projects— $1.4 billion for the Fulton Street Station, $2.4 billion for the No. 7 line’s extension, $4 billion for the PATH train station designed by Santiago Calatrava—­beggar the imagination: nice places but deeply skewed priorities. According to the Pedestrian and Bicycle Information Center, estimates for the cost of a mile of dedicated urban bike lane range from about $5,000 to $535,000. Let us assume the extreme top-end, bells-and-whistles version: The nearly $8 billion spent on these three projects could provide more than 12,000 miles of safe bike lanes. Fortunately, the total extent of the city’s streets is only 6,000 miles, which leaves enough money for… you do the math.

The streets should belong to the people!

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