By Mark David Blum, Esq.
“Gitmo”, shorthand for the United States Naval Base at Guantanamo Bay, Cuba has come to symbolize more than just a military presence on an enemy Isle. There, the United States Constitution has been suspended in what former prosecutor called a “stain upon the United States military” as prisoners from the so-called War on Terror are held and tried. As a word and symbol, “Gitmo” now stands for all things Ugly and Immoral.
The New York State Fair has been a part time summer home for me for the past 15 years. In a myriad of roles, I have come to intimately know the Fair and its soul. I have dealt with everyone from the top down and know more of the Fair’s workings than many of its staff and employees.
Over the years, I learned that the New York State Fair has many unwritten rules. As a government entity, I have always known that an unwritten rule has no force of law and would someday have a great defense. This was plotted as the “shoe defense” in case I were ever arrested for not wearing shoes. There is no written rule mandating the use of shoes. (For the record there is a teeny tiny itsy bitsy sign over Gate One that says “shoes required”. Presumably this notice would be only to Gate One users).
A few years ago, Fair management changed and Dan O’Hara stepped into the Director’s seat and with him came a slew of new unwritten rules. Chief among them was that everything at the Fair must meet an undefined standard of being ‘Family Friendly’. That dogma led to the creation of many new unwritten rules that were being enforced. Ultimately, the unwritten rules of O’Hara came into conflict with some long written rules. It became a war of government rights versus free speech rights.
First of all, no government is allowed to act arbitrarily and capriciously. There must be reason behind their actions. Laws and rules must be written in plain English. Standards to be applied must be objective and narrowly tailored to meet the ends. No government is allowed to operate and punish citizens based on unwritten laws, rules, or regulations.
Second it would appear that the State Fair is the perfect place for protesting or selling a product or message. After all, the U.S. Constitution holds as most cherished the use of the public square for the discussion and dissemination of political ideas. Presumably, with nearly a million visitors walking down pathways set up like public streets and with the whole public invited unconditionally, that the same free speech rights that exist on Salina Street in Syracuse would exist at Times Square at the Fair.
Unfortunately, the United States Supreme Court would disagree with you and did so back in the 1980s. In the seminal case Heffron v. International Society for Krishna Consciousness, the Court held that a State Fair is not a full blown public square for political discussion for a host of reasons. They held expressly that government can regulate the time, place, and manner of marketing within the Fairgrounds. The Court did expressly maintain that discussion and debate was not within the scope of the allowable regulations. A primary State interest in keeping traffic moving along the walkways was seen as a major concern and seemed to sway the opinion.
Notably, this same issue arose at the New York State Fair with the same Plaintiff. Here too we learned that the Fair can regulate commerce but cannot stop protesting or free discussion and debate. At least on this issue, the Fair has a written rule that designates the space outside Gate One as being the ‘protest area’.
Since Dan O’Hara has taken over and has implemented a vast array of unwritten rules, he has not only put the taxpayers at risk of civil judgments, but he is trampling all over the Constitution and the parameters of Heffron. There are now three instances were the unwritten rules have violated the law.
The first major incident occurred two years ago when Dan summarily removed from exhibition, a blue ribbon award winning photograph. Having no direct control over the entity that does the judging and the written rules requiring all submissions to be exhibited, Dan was unaware that the content of the photograph contained a blowup sex doll smoking a cigarette. On Day Two of the Fair when the photograph was discovered by O’Hara, the picture was taken down. No written rule gave Dan the authority to censor the content of the display. But his family friendly paradigm and Book of Unwritten Rules prompted him to just walk in and take down the photo.
A second incident never occurred. In a conversation with a person of rank and position in the Fair Management Office, I came to learn of another unwritten rule. There is an international organization of police officers who are out front and leading the discussion on ending the nation’s war on drugs. The name is LEAP and their cause is worthy. Leap members and speakers have a t-shirt that says, “Cops Say Legalize Drugs. Ask Me Why.” I was told to my face that anybody wearing that shirt would be asked to remove it or leave the grounds. Alas but I could not rally a test of that rule and though a member of the organization, I am not a cop so don’t ask me anything – especially at the Fair.
The third event and the one which prompts this discourse, is the arrest of Ed Kinane. Wearing the orange jumpsuit and shackles of a Gitmo prisoner, Kinane appeared on the fairgrounds one day last year in protest of our national policy. Refusing an order of a NY State Trooper to take off the masquerade, Kinane was arrested and held on bail. The charges were recently dismissed by the judge on the theory that Kinane was doing nothing illegal at the time he was given the order to disrobe by State police. This was the right outcome, though possibly for the wrong reasons.
To me, the fundamental flaw in O’Hara’s actions is his reliance on the unwritten rule. The State Fair can implement any number of offensive, wretched, and oppressive rules and regulations. Doing so is clearly within its domain. The umbrella argument of “in the interest of crowd control and traffic flow” will trump most first amendment claims. The Fair is not the public square but a limited event in a limited space that needs the ability to be unclogged. Our Supreme Court so recognizes.
One day Dan and his lawyer are going to find enlightenment and learn to put the rules in writing. Once the rule is written that says “shoes required” or “no causing a crowd to form”, then such rules can be enforced with impunity. Had such a rule been in place, Kinane’s arrest would have been legal and justified. If a rule is written that bans all cigarettes and displays thereof, though you would get into a content based speech analysis, the end result would be the lawful removal of the award winning photograph.
But so long as his rules remain his alone and are unwritten, the public cannot possibly be considered to be on notice thereof. How can we conform our behavior if we do not know what is not permitted? By what means do the police know when a citizen is acting within or without the boundaries of the law if the rule is not written? In a free society, you do not need permission to do something, you need a reason to be told to stop.
Most importantly is that if a rule is written, the author and those who voted for it are subject to public scrutiny. I would argue this is the primary and most valuable part of the mandatory written rule. It is the means by which we evaluate what our legislators are doing to us. Also, it enables public debate and consensus on how we are going to define ourselves as a People; just look at the laws we make and rules we enforce and a value judgment can be readily seen. Dan needs to dump his unwritten rules. Either he should have the courage of his convictions and get the rules written and published, or let it go.
Are we a People who do not support the Ed Kinanes of the world? Would we prefer to ban and punish protestors who invade the good times at the State Fair? Which rules and regulations do we hold more dear; the First Amendment or Family Friendly?
How we treat each other as fellow travelers in this life will serve as the monument to our existence. The rules and regulations we leave behind shall be our legacy and message to later generations. I respectfully submit that the State Fair should encourage protest. We need to see all that we are as a People. To celebrate “New York” is to celebrate all her glories, including the power wielded by peaceful protest and strongly held opinions.
It has been said that once you start burning books, burning people is not far behind. When O’Hara took down that picture, the arrest of Kinane was not far behind. Unlimited and unbridled discretion in the application of a set of subjective unwritten rules is a clear and present danger to all of us. The Fair has to learn that when the chances of someone being “one in a million”, there is going to be at least one of them on the property at some point. New York should be celebrating and showcasing all that she is; including her blemishes. The drug war, our senators and congressfolks complicity in Gitmo, or what is family friendly are all part of the great State, It is our Fair and we the People should enjoy all the Fair has to offer; including that which it attracts. The combined effect of all of it makes the Fair an experience never to be forgotten.
Or, the Fair can just enact a rule that says “only sheep allowed”.