ICAP’s Mary McCord Affirms Constitutionality of Portland’s Proposed Protest Safety Ordinance

November 14, 2018

WASHINGTON, D.C. – In advance of a Wednesday public hearing and vote on the City of Portland’s proposed Protest Safety Ordinance, Mary McCord, Senior Litigator at Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP), submitted a statement to the Portland City Council, on behalf of ICAP, opining on the constitutionality of the ordinance and endorsing its intention to protect free speech and public safety.

“The City of Portland is taking thoughtful and lawful steps to ensure that all citizens, regardless of their beliefs, can exercise their First Amendment rights safely,” said McCord. “This ordinance properly respects freedom of speech and ensures that city officials and law enforcement can take necessary precautions to reduce the potential for violence at public demonstrations.”

McCord’s statement explained that the proposed ordinance to “Authorize the Commissioner in Charge of the Police Bureau to Order Content-Neutral Time, Place, and Manner Regulations for Demonstrations Held in the City” is facially constitutional.

Portland City Council’s public hearing comes amid local debate over the powers the Protest Safety Ordinance would bestow on city and law enforcement officials to regulate protest activity. McCord’s statement assures both city officials and the public that the proposed ordinance does not allow the city to decide which individuals or groups can exercise their freedoms of speech. Rather, it provides Portland officials with the tools needed to set the safest possible conditions for all who choose to participate in public demonstrations, regardless of their viewpoints.

The statement on behalf of ICAP takes no position on the constitutionality of how the authorities provided by the ordinance might be used in the future, which would depend on the particular facts.  The ordinance establishes a framework for limited viewpoint-neutral restrictions governing when and where demonstrations may take place, and what weapons, if any, may be carried. Under the terms of the ordinance, these limitations could be imposed only in circumstances where there is a substantial likelihood of violence at a planned demonstration based on a history of violence between those planning to attend and on other credible information indicating an intent to engage in violence.

McCord has led litigation to protect both public safety and constitutionally protected freedoms of speech. Most recently, ICAP filed a lawsuit on behalf of the City of Charlottesville, Virginia, local small businesses, and neighborhood associations against alt-right, white nationalist, and militia organizations and individuals who engaged in paramilitary activity at the August 2017 Unite the Right rally, which erupted in violence. The lawsuit resulted in court orders permanently prohibiting the defendant individuals and organizations from returning to Charlottesville as part of a unit of two or more persons, acting in concert, while armed with any type of weapon during any protest, rally, demonstration, or march. Before joining Georgetown University Law Center as a visiting professor, McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016–2017, the Principal Deputy Assistant Attorney General for National Security from 2014–2017, and an Assistant United States Attorney for nearly two decades.

McCord’s full statement is available here.