October 19, 2018

Trump Administration Looking at ‘Protest Tax’ in Nation’s Capital


Last week, President Trump referred to protests opposing the Supreme Court confirmation of Brett Kavanaugh as “the rule of the mob.” (Photo: Alex Wong/Getty)


The National Park Service could charge a “protest tax” and block off 80 percent of the White House sidewalk to demonstrations.


By Tim Lau, J.D. / 10.17.2018


The Trump administration is considering new restrictions that would severely limit the right to demonstrate in the nation’s capital — including a rule that would charge a fee for protest organizers in Washington, DC. The park service has also proposed closing off 80 percent of the White House sidewalk, a significant protest site.

On Monday, Brennan Center president Michael Waldman was among the signatories of a letter sent to a National Park Service official opposing the proposed rule change. The letter, which was organized by the Niskanen Center, called the proposals “anti-democratic,” and “unconstitutional.” The Brennan Center also submitted comments to the National Park Service on Monday opposing many of the park service’s proposed revisions.

These proposals are particularly troubling in the context of other recent attacks on free speech and efforts to rein in public expressions of dissent. In at least 16 states since last year, Republican legislators have filed bills designed to toughen laws on protests. The Trump administration has consistently attempted to undermine First Amendment rights, labeling the press “enemies of the people” and falsely portraying protestors as paid political operatives. Last week, President Trump referred to protests opposing the Supreme Court confirmation of Brett Kavanaugh as “the rule of the mob.”

Some of the key elements of the National Park Service’s proposal:

The National Park Service could charge a “protest tax” for demonstrations

The park service’s proposed rules include a suggestion to begin charging fees for security and support services for large demonstrations in public spaces in Washington, DC – the equivalent of a “protest tax.” Essentially, protestors would be required to pay for an exercise of their core First Amendment rights. While it’s true that demonstrations generate financial costs, the federal government has historically assumed responsibility for such costs – just as it pays for any other costs generated by the use of public lands. In addition, the proposed fees would create a disproportionate burden on those who are financially underprivileged. Charging such fees will inevitably chill persons and groups who would otherwise choose to protest.

“The whole idea of charging fees for demonstrations is not appropriate,” said Andrew Boyle, counsel in the Liberty and National Security program at the Brennan Center. “These demonstrations are taking place in areas governed by the National Park Service. This is land that belongs to the American people, and they have a right to gather and protest on that land.”

The agency could close off 80 percent of the White House sidewalk to pedestrians

The park service also is considering blocking off a significant portion of the White House sidewalk to demonstrations. This would involve shrinking the area of the 25-foot-wide sidewalk that is accessible to pedestrians to a 5-foot long sliver along Pennsylvania Avenue. The park service’s proposal contained no rationale for this measure.

The White House sidewalk has been the site of numerous historically iconic demonstrations, including protests by the women’s suffrage movement and against the Vietnam War. Restricting the area in which people can gather would not only make such demonstrations impossible; it would violate an earlier court order that allows at least 750 people to demonstrate on the White House sidewalk and declares that any lower limit is “invalid.”

The Road Ahead

As of Monday’s public comment deadline, more than 60,000 official comments were submitted to the National Park Service in response to the agency’s proposal. While the ultimate outcome of the proposal is currently unclear, the right to exercise our First Amendment rights – which include the right to demonstrate in the nation’s capital – shouldn’t be.


Originally published by the Brennan Center for Justice under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.

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