In Giulianiville, it's a case of law vs. order

By , Special to The Christian Science Monitor

Just his name, Rudolph Giuliani, conjures up two wildly different images.

In one, the leader of America's largest city is the dragonslayer of urban crime, the prince of safe streets, a standardbearer for mayors everywhere. In the other view, much less flattering, he's a law-and-order zealot who tends to overlook constitutional niceties such as freedom of expression.

Lately, these two views have clashed with increasing regularity, with the result that the mayor is often in court defending his tactics as he tries to tame the mean streets of New York. Just in the past two weeks, federal judges ruled that he violated the Constitution when he tried to deny a parade permit to the Ku Klux Klan and yanked city funds from the Brooklyn Museum.

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While Giuliani usually loses these legal battles, he may yet win in the court of public opinion. There's a quiet but sizable constituency, it appears, for putting renewed emphasis on quality-of-life crimes such as loitering, vagrancy, and disorderly conduct - a fact not lost on mayors around the US who watch The Giuliani Chronicles with interest.

A veteran lawyer, Giuliani "knows the law as well as anyone else, yet he turns a blind eye to the law, prompts these lawsuits, and goes after these groups," says constitutional scholar David Rudenstine of Cardozo School of Law in Manhattan. "I have no idea what he is trying to achieve by this, other than headlines and vote-getting."

The collision between law and order and freedom of expression is found in other venues, too. Earlier this year, the US Supreme Court said Chicago's antigang loitering ordinance was unconstitutional. And in Austin, Texas, civil-liberties groups are bringing suit against Gov. George W. Bush, charging that state police are illegally arresting people who hold protests near the governor's mansion.

But nowhere does the conflict play out in sharper relief than it does here, where an unabashed law-and-order mayor meets a tradition of boisterous free speech.

Indeed, Giuliani's emphasis on controlling disorderly behavior in public spaces has made New York a successful experiment in the "broken windows" theory of crime reduction. This theory holds that eliminating signs of neglect (such as broken windows) and low-level crime (such as graffiti), and enforcing street-order laws, will help reduce serious crime In cities.

"Mayor after mayor, because they've listened to citizens' concerns, have rediscovered something citizens themselves have known for a long time - that disorderly behavior creates both fear and leads to serious crime," says "broken windows" pioneer George Kelling, a professor at Rutgers University's School of Criminal Justice in Newark, N.J.

It is precisely this emphasis on controlling disorder, however, that can smack headlong into the right to freedom of expression.

In many ways, these conflicts represent competing views of social order that go back to the European Enlightenment. In the 17th century, the political philosophy of Thomas Hobbes saw the state as a necessary authority to check the passions of individuals. A century later, however, Jean Jacques Rousseau saw state authority as a dangerous intrusion on the liberties of the individual. Both men have influenced the development of Western democracy.

In general, both views of social order have evolved in the US. While the right to free speech is a basic principle of American democracy, officials can ensure that speech is orderly through what are known as time, place, and manner regulations.

"Generally speaking, local officials have the authority to impose reasonable regulations, but not regulations aimed at defeating [free speech]," says Mr. Rudenstine.

Yet many civil libertarians here accuse the mayor of going well beyond fighting "broken windows" disorder. Using unreasonable and heavy-handed tactics, Giuliani tries to quash speech he finds personally offensive, they say.

"He gives the impression that public space is his, and that he will determine which groups can have the march, rally, or press conference," says Norman Siegel of the New York Civil Liberties Union (NYCLU). "With the [Brooklyn] museum, he has moved into a new area conceptually - that it wasn't only public space anymore, but public funding." The mayor has called an exhibit at the museum "sick" and tried to cut its city funding.

Giuliani has also tried to deny permits for protests by cab drivers, street vendors, and the Million Youth March - and to keep groups from holding press conferences on the steps of City Hall, long a place of public speech.

The mayor's office did not return repeated phone calls seeking comment.

Because the Giuliani administration almost always loses these cases in court - the NYCLU has won 19 of 21 First Amendment lawsuits it has led or joined against the mayor - many believe he is purposely harassing them for political reasons.

"As a society, we don't really gain much by these tussles - the constitutional principles are very well embedded," says Rudenstine.

Even Mr. Kelling, who says Giuliani deserves "enormous credit" for bringing order to New York streets, points out the dangers. Loitering and vagrancy laws were often used to keep black Americans in their place in both the South and the North. "Anyone who advocates order-maintenance activity has to begin by acknowledging its sorry history," he says.

(c) Copyright 1999. The Christian Science Publishing Society

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