Durham is a place where, in a matter of hours, hundreds of people will gather downtown in the middle of a workday in one-hundred-degree heat to stand up to the Ku Klux Klan—and end up having a block party complete with a drum circle.
So it should come as no surprise that a proposal requiring notice for some protests on Durham County grounds is meeting with resistance.
The proposal would require forty-eight business hours' notice for demonstrations involving fifty or more people on areas outside county buildings. If notice isn't given, the county manager could determine that demonstrators are trespassing and have them removed—authority the manager already has.
"The ability to respond to current events in real time and the importance of people, immediately after learning of a policy enactment or proposal, being able to voice their opinion about that in the streets is a necessary part of our democracy," says Susanna Birdsong, policy counsel for the ACLU of North Carolina. "The immediacy is important because it's what the Constitution requires. Forcing people to wait forty-eight hours before voicing an opinion on the matter of the day could be too late, and it just isn't necessary."
The proposal follows a letter by Sheriff Mike Andrews in response to an August 18 anti-Klan rally downtown. In it, Andrews asked for guidelines for demonstrations on county property.
Wilmington, Goldsboro, and Raleigh are among the cities that require "notice of intent to picket," as they call it. Goldsboro asks for seventy-two hours' notice for a crowd of any size to picket. Wilmington and Raleigh both require notice of any protest involving ten or more people, although their ordinances don't specify when that notice needs to be submitted.
Raleigh's ordinance was upheld in 2008 by the Fourth Circuit Court of Appeals, which said it didn't place a significant burden on protesters or give officials discretion to restrict speech. Part of a policy in Long Beach, California, that required twenty-four hours' notice, however, was deemed unconstitutional on the grounds that it regulated events regardless of whether or not they would interfere with vehicle or pedestrian traffic, and therefore could restrict speech beyond what is reasonable to maintain order.
The policy being proposed in Durham is modeled after one on the books in Charlotte since 2004—with one key difference: Charlotte's policy also requires notice forty-eight hours ahead of an event, while Durham's proposal calls for forty-eight business hours of notice. This means that protesters who want to respond to something that happens on a Saturday could have to wait until at least Wednesday to do so.
During a board meeting last week, Commissioner Heidi Carter voiced the strongest objections, saying the policy was unnecessary and could stir up discord.
But county attorney Lowell Siler and Jodi Miller, general manager of community and public safety, said the policy was needed to ensure the safety of both demonstrators and people using county facilities. The policy isn't intended to stifle speech, they said, and couldn't be used to deny permission to any event.
But the policy could conceivably give county officials sufficient heads-up to shut down a protest once it begins.
"We always worry about how things are going to be enforced and what that looks like, who will be targeted and who won't, any time there is discretion in enforcement," Birdsong says.
Because the proposal comes as an update to the county's facility-use policy, which is approved by the county manager, amending it is an administrative decision that doesn't require approval from commissioners. County manager Wendell Davis said staff members would attempt to bring a revision of the policy back to the board to satisfy commissioners' concerns, but it's unclear when that will happen.