It is unfortunate that at a recent Teaneck town council meeting, only three council members voted “yes” to introduce a proposed ordinance that would regulate the time, place and manner of large gatherings on Teaneck’s public streets and sidewalks—while four council members refused to vote in favor.
The need for the ordinance is well-explained in its introductory paragraphs: “Over the preceding year, the Township of Teaneck has experienced an increase in large gatherings proceeding along a public street, public sidewalk, or other public right-of-way, both organized and not, that have raised concerns over the public health, safety, and welfare of the residents of the Township…. [A]t the same time, the Mayor and Township Council seek to protect the right of its residents to participate in peaceful marches, demonstrations, and other expressive activities that are protected by the United States and New Jersey Constitutions.” Accordingly, “it is the intent of this amendment to protect and preserve the health, safety, and welfare of the citizens of Teaneck, including by establishing certain ‘time, place and manner’ regulations to ensure that constitutionally protected activity can safely proceed without undue interference.”
It is hard to understand how anyone could be against that.
Unfortunately, in the absence of appropriate regulations for large gatherings, various protests over the last year and a half have devolved into threatening, harassing and intimidating spectacles targeting houses of worship and private residences in Teaneck and nearby towns.
There is no one more concerned than I am about upholding the Constitution and carefully protecting our fundamental liberties. I regularly bring litigation to hold the government to account at every level and to ensure that government officials don’t exceed their constitutional limitations. I’ve litigated numerous cases under both the free speech and free exercise clauses of the First Amendment, both of which are foundational to our democracy, as well as to protect numerous other constitutional rights. I am deeply familiar with the strategies, tactics and arguments raised in constitutional litigation.
On the free speech side, I have represented protesters in challenging an injunction issued against them by a state court and nonprofit groups in challenging donor disclosure laws, among many other cases. In the free exercise context, I have represented schools, houses of worship and other religious institutions across faith communities, including winning an emergency injunction from the U.S. Supreme Court on behalf of the Roman Catholic Diocese of Brooklyn blocking capacity limitations targeting houses of worship during the tail end of the COVID-19 pandemic and, in a case called FBI v. Fazaga, submitting an amicus brief to the U.S. Supreme Court on behalf of constitutional law professors seeking to uphold the right of Muslim Americans subject to discriminatory electronic surveillance to bring a First Amendment lawsuit. In the latter brief, I wrote that the government’s alleged religion-based targeting “represent[s] as deep an affront to the very character of this nation as can be envisioned.”
With this background, let us address some of the false claims made at the Teaneck council hearing about the ordinance, which in large part appear to be driven by a disinformation campaign that some well-meaning individuals in the community have unwittingly spread. These misreadings and rumors were seeded by a threatening cease-and-desist letter sent to the Township Council by PAL Commission, which virtually every objecting speaker at the council meeting read from. This organization sent a similar cease-and-desist letter to one of our community members threatening a lawsuit for holding a private Israel-related event in their private home in Bergenfield. This is not a serious organization and its objections are not serious; they are fronts and covers for antisemitism and intimidation of the Jewish community.
Unfortunately, four members of the Teaneck town council gave more credence to the claims made in this propaganda letter than to the overwhelming support for the ordinance from members of the Teaneck community.
Let’s address some of the claims that have been swirling. It is my sincere hope that the council members who refused to vote in favor of introducing the ordinance will reverse course and unanimously pass this important ordinance in the coming weeks.
Claim 1: The ordinance is an unconstitutional, content-based restriction on speech.
Truth: The ordinance is a reasonable, content-neutral time, manner and place regulation of events occurring on the public streets and sidewalks. Virtually every city and town in the country already has time, manner and place regulations covering such events, and the new ordinance isn’t new at all, but an update to Teaneck’s existing ordinance governing “special events” that largely carries over the prior permitting requirements and guidelines, with some relatively minor updates (drawn, for example, from Hackensack’s similar ordinance) to address recent events. The Supreme Court has made clear that such time, manner and place regulations are appropriate and constitutional, and in fact the only way to protect everyone’s rights.
The specific objections that have been raised are largely based on misreadings of the ordinance (some specific examples are discussed below) or an apparent ignorance of the relevant case law. For example, numerous objectors at the public hearing referenced the PAL Commission letter’s citation to Reed v. Town of Gilbert, a case about when towns can and can’t impose content-based restrictions on signage—specifically, stricter limits on signs advertising religious services than those displaying political messages. The Teaneck ordinance, in contrast, was carefully drafted so as to apply equally to all “special events” regardless of their content or message. A case the objectors seem not to be aware of, in contrast, is Frisby v Shultz, in which the U.S. Supreme Court upheld a town ordinance banning picketing directed at a particular private residence, on which the proposed Section 31B-9(g) is based. Section 31B-9(h) regarding special events in close proximity to religious establishments is similarly based on statutes that were upheld—Phelps-Roper v. Strickland (6th Cir. 2008) and Phelps-Roper v. City of Manchester (8th Cir. 2012), both of which rejected constitutional challenges to a 300-foot buffer around funerals, including specifically where held in a church or synagogue, where the activity was “disruptive or undertaken to disrupt”—the exact buffer zone and standard used in the proposed Teaneck ordinance.
Claim 2: The ordinance would restrict children climbing trees, people’s backyard parties, and other activities on a person’s own private property.
Truth: The ordinance governs only “special events,” which are defined as an “organized group having a common purpose or goal, proceeding along a public street, public sidewalk, or other public right-of-way in the Township of Teaneck.” In other words, only group gatherings traveling along the public streets and sidewalks. These events by their very nature impact traffic patterns, car and pedestrian safety, and the shared use of public spaces by members of the public and are in the heartland of what reasonable time, manner and place regulations reasonably govern. Moreover, the ordinance in most instances simply requires that anyone who wants to put on a special event apply for a permit, which must be issued so long as the event “is not to be held for any unlawful purpose and will not in any manner tend to cause a breach of the peace or unnecessarily interfere with the use of the public streets or public rights-of-way.” Not having a permitting requirement and reasonable time, manner, and place regulations is a recipe for disruption, accidents, and abuse of the public rights of way.
Claim 3: The township attorney did not prepare and sign off on the ordinance.
Truth: The township attorney prepared the draft ordinance, decided what it should include and not, both conceptually and with respect to specific language, and presented it to the council. He drew from a variety of sources in preparing the ordinance, including from Hackensack’s parallel ordinance, and I coordinated with him to provide some suggested language. But the township attorney decided in all instances what to include, what to accept or revise, and what to present to the council for introduction.
Claim 4: The ordinance was rushed through without adequate review.
Truth: The township attorney worked for many months on the ordinance, making multiple rounds of revisions in response to comments, including numerous changes made in response to comments from numerous Township council members, to address any possible concerns. council members had numerous opportunities to review the draft, provide feedback, and raise possible concerns—and they did, resulting in the draft ordinance we now have. In addition, the vote last week was simply to introduce the draft ordinance. As its sponsoring councilwoman explained, this would have put it on the agenda for a vote at the following council session, with two weeks to address any further comments and make any necessary adjustments, revisions or clarifications.
Claim 5: Teaneck needs to hire an “independent” constitutional lawyer to review the ordinance.
Truth: Teaneck has a lawyer whose fiduciary and ethical responsibility is to the Township. He is paid with residents’ tax dollars and he is responsible for reviewing all proposed ordinances. If the Township were to hire separate lawyers to review every proposed ordinance, it would be prohibitively (and unnecessarily) expensive. The Township attorney can, of course, consult with outside counsel if he believes it would aid him to do so. That’s what he did here, including consulting with me as an outside constitutional lawyer. I worked pro bono, giving the Township the benefit of an outside expert without having to spend taxpayer dollars on another lawyer. My only interest throughout was to help Teaneck craft an ordinance that protected the rights of all citizens—residents and protesters alike—while providing clear rules of the road for all involved, including law enforcement. In that, I believe the Township, the Jewish and non-Jewish community, and Jewish communal institutions in Teaneck—including ones I’ve represented pro bono—are completely aligned. The Township attorney conducted himself admirably in the face of inappropriate questioning from certain council members who put him on the spot in a public meeting and asked him questions that would have forced him to break attorney-client privilege. While he appropriately did not answer the questions in public, I am confident that he would not permit an ordinance to be voted on for introduction if he did not believe it was constitutional.
Claim 6: There’s no need for this ordinance because the Jewish community brought these protests upon itself. If the Jewish community doesn’t like being targeted for harassment, threats and intimidation, it can simply choose to not hold Israel-related events.
Truth: The suggestion is offensive. It essentially blames the Teaneck Jewish community for its own harassment. Not only that, it seeks to stop the community from proudly and publicly exercising and facilitating core religious beliefs and principles—namely, the centrality of the State of Israel to the Jewish religious experience, and the specific mitzvah to settle in the Land.
In fact, it would violate a religious organization’s First Amendment associational, self-governance, free expression, and religious-autonomy rights to forbid or impede it from providing information on and facilitating the sale of real estate for members of its faith community. This is especially so for a Jewish institution assisting its members in moving to and building homes in Israel. The idea that Israel is the Jewish homeland and that those in the Diaspora should make every effort to return to their indigenous lands after 2,000 years of exile are core religious principles for virtually every American Jewish religious institution. Kowtowing to a mob based on misinformation isn’t a valid basis to infringe the rights of synagogues and their members.
This is, moreover, an active and recurring issue. For example, various organizations have already put out a “call to action” against the “Zionist element of Teaneck’s population” to protest a Nefesh B’Nefesh event at the Glenpointe Marriott in Teaneck scheduled for March 10. We need to update our ordinance to ensure that events of core religious value to members of the Teaneck community, such as this and others that will follow, can be conducted safely and without incident, while preserving the rights of others to express even vile and hateful ideas, subject to reasonable and content-neutral time, manner, and place regulations.
It is unfortunate that certain Teaneck town council members have ceded these issues to those who wish to continue to harass and intimidate Teaneck residents in their homes and houses of worship. Hopefully they will see through the misinformation and propaganda and quickly agree to introduce the ordinance for prompt and unanimous approval.
Akiva Shapiro is a partner at the law firm of Gibson Dunn, Chair of its New York Administrative Law and Regulatory Practice Group, Co-Chair of its Religious Liberty Working Group, Co-Chair of its Sabbath Observant Affinity Group, and a member of its Constitutional and Appellate Practice Group, among others.
