PRIOR RESTRAINTS, EXEMPTIONS AND BARGAIN
4.1. Traditional processions – content discrimination or a reasonable exemption?
129 above) where the Commission considered the fact that applicant had the possibility to protest at other places (– most probably somewhere where the Olympic delegation, the target of the protest, would not have seen her), as one factor rendering the interference proportionate.
Again, one might observe a strengthening of the Convention protection in the last decade, which might be also due to the different degree of restriction in the Dutch case, on the one, and in the Polish one, on the other hand, but it might also result from the increasingly rights protective mood of the Court. In any case, these strong procedural guarantees are a far cry from the lenient standard declared by the USSC in Thomas v.
Chicago Park District as discussed above.358
IV. E
XEMPTIONS,
DEROGATIONS FROM THE NOTIFICATION REQUIREMENT4.1. Traditional processions – content discrimination or a reasonable
130 first of all religious processions in mind, and it applies largely to those still today.359 Nonetheless, within this scope, the interpretation is quite generous as even a seventy year interruption does not prevent a procession to qualify as conforming to local usage.360 Such manifestations are also exempted from the ban of disguising the face.361 Légifrance does not yield any search results which are not about religious processions, thus the conclusion that French legal practice hereby de facto institutes a content-based exemption for religious processions appears inevitable. This, however, seems to raise no controversy in the country, and it is possible also that whenever a group would claim its manifestation should be considered conforming to local usage, courts will accept it.
In German law, there is a more complicated controversy around traditional or religious processions. Art. 17 of the Federal Assembly law362 exempts from the notice requirement (and indeed from ban and conditioning) open air worships, masses, religious processions, funeral and wedding processions and traditional popular festivals. The apparent privilegisation of such assemblies over political ones resulted in scholars claiming the regulation unconstitutional,363 others in need of an interpretation conform to the constitution.364
Since 2001, however, as the GFCC appeared settled on a narrow (or enlarged) concept of assembly, which in any case restricts the scope of Art. 8 GG to public
359 Colliard & Letteron, Libertés Publiques, above n Error! Bookmark not defined. at 503.
360 CE, 11 février 1927, Abbé Veyras, Rec. p. 176, no. 585 as cited by Colliard & Letteron, above n Error!
Bookmark not defined. at 503, note 2.
361 See below in Chapter 8.
362 On its status see above n Error! Bookmark not defined..
363 EgEg Sieghart Ott & Hartmut Wächtler, Gesetz über Versammlungen und Aufzüge 6th edn (Stuttgart, Boorberg, 1996,) § 17.
364 Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n Error! Bookmark not defined., § 17.
131 matters,365 some of the authors argue that Art. 17 Assembly Law does not even cover assemblies protected by Art. 8 GG.366 Thus, the regulation does not privilege them: to the contrary, these assemblies are subject to general police law with a wider range of intervention possibilities than it is the case with Art. 8 assemblies.367
This approach however strikes back on the opposite end: most of these processions certainly should enjoy basic rights protection because of the applicability of freedom of religion, simple freedom of action (with its easier limitability) will not do. It is hard to see why one basic right (freedom of assembly within the narrow notion) and another (freedom of religion) should be subject to different regimes when the activity is actually the same (procession). The problem has thus in my view become moot neither because of the mentioned decision of the GFCC, nor because the regulation of assemblies became a competence of the Länder. Saxony’s new assembly law contains an identical regulation,368 while the Bavarian assembly law exempts such assemblies from the ban on disguising the face and of bringing ‘protective weapons’.369
The UK POA section 11 (2) dispenses with the notice requirement for processions commonly or customarily held in the given area, and also funeral processions ‘organised by a funeral director acting in the normal course of his business.’ ‘Commonly or customarily held’ includes traditional May Day or Good Friday processions,370 but the
365 BVerfGE 104, 92 (2001), see the discussion on the notion of assembly in German law above in Chapter 1.
366 Eg Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n Error! Bookmark not defined., § 10, 349.
367 Klein DVBl. 1971, 241 note 101 as cited by Volkhard Wache, ‘§ 17 VersG’ in Strafrechtliche Nebengesetze, eds. Georg Erbs & Max Kohlhaas, 185. Ergänzungslieferung (München, Beck, 2011).
368 Gesetz über Versammlungen und Aufzüge im Freistaat Sachsen, (Sächsisches Versammlungsgesetz - SächsVersG), In der Fassung der Bekanntmachung vom 20. Januar 2010, (SächsGVBl. S. 2), § 17.
369 Bayerisches Versammlungsgesetz, Vom 22. Juli 2008 (GVBl S. 421), BayRS 2180-4-I, § 16 IV. For the notion of protective weapons and disguising identity, see below text accompanying notes 933--945.
370 Usual examples in UK textbooks on civil liberties,eg Stone, Textbook, above n 275 at 260.
132 category is not limited to it as the rationale of the exemption is that police are aware anyway.
A 2008 House of Lords judgment in Kay371 on Critical Mass cycle rallies in Central London found that a twelve year practice certainly qualifies as customary, thus the notice requirement does not apply. The Court has not clarified how long a practice below twelve years will suffice, but the case affirms that the exception as applied does not relate to the content of the message, but really to its recurring nature. The House of Lords disagreed with the Divisional Court372 about whether the route of the procession needs to be known to police in advance in order for the notice to be dispensable. Though Critical Mass does not have a predetermined route, the House of Lords decided that it is still the same procession, ie it falls under the exemption. This generous understanding however did not prevent the Divisional Court to find subsequently that police are still entitled to impose conditions as to the route of the Critical Mass, despite the fact that it does not have any predetermined route.373
As to funeral processions, the somewhat meticulous formulation of ‘organised by a funeral director acting in the normal course of his business’ appears to exclude mass funeral processions which normally are political, and might be source of danger and occasion – eg in Northern Ireland – of intergroup conflict. However, exactly the regulation regarding Northern Ireland exempts simply ‘funeral processions’ from advance notice, without further specification.374 This same regulation still contains a hint on the specific history: it does not exempt customarily or commonly held processions
371 Kay v Commissioner of Police of the Metropolis, [2008] UKHL 69.
372 Commissioner of Police for the Metropolis v Kay, [2007] EWCA Civ 477, [2007] 1 W.L.R. 2915.
373 Powlesland v DPP [2013] EWHC 3846 (Admin)
374 Article 3 (4) a) The Public Order (Northern Ireland) Order 1987.
133 from advance notice,375 though the Secretary of State can regulate in an order those processions which are exempted.376
In the U.S. the situation of exemptions for traditional assemblies is unclear.
Traditionally, funeral processions were exempted by laws and regulations in some of the states and municipalities.377 Early state court cases sometimes struck down such regulations for being discriminatory.378 However, there not only funeral, but some other processions were also exempted, and the Court has even left open the possibility later to allow for an only funeral procession exemption.379
The USSC has not ruled exactly on this issue. Major assembly cases of the USSC, such as Shuttlesworth involved ordinances exempting funeral processions, but this was not the main reason for their unconstitutionality. In Shuttlesworth, the exception only appears in a footnote, only for the sake of being precise.380
Although such regulations is clearly content-based, and thus would fall under strict scrutiny, the widespread practice in state and municipal laws to exempt funeral
375 Neil Jarman, ‘Regulating Rights And Managing Public Order: Parade Disputes And The Peace Process’, 1995-1998, 22Fordham Int'l L.J. 1415 (1999)1422.
376 Article 3 (4) b) The Public Order (Northern Ireland) Order 1987.
377 Eg, Edwin Baker found 9 of 18 examined regulations containing such exemption, see Edwin Baker,
‘Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations’ 78 Nw. U. L. Rev. 937 (1983), text accompanying notes 32-34, also citing examples from as early as 1888. An internet search for ‘exemptions from permit requirement for funeral procession’ (without quotation marks) also shows the exemption being widespread all over the U.S.
378 Commonwealth v. Mervis, 55 Pa. Super. 178 (1913), Commonwealth v. Curtis 55 Pa. Super. 184 (1913).
379 ‘It may well be urged that there is something distinctive in a funeral procession. It is not only a work of charity but of necessity as well, that we bury the dead. These occasions are attended by a solemnity all their own; and experience has taught us there is, usually at least, little about them to encourage the presence of large bodies of citizens, while there is much to keep in serious and orderly mood those who may take part in them. When the question arises whether such an exception alone, to the general character of an ordinance such as we have before us, would amount to undue discrimination, it may be properly dealt with.’
Commonwealth v. Mervis, 55 Pa. Super. 178 (1913) at 3.
380 Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) 151, note 1.
134 processions from the permit requirement either indicate that such exemptions would pass strict scrutiny, or that it raises no controversy.