Anti-war group says township’s ‘hold-harmless’ requirement impedes right of free speech.
By:Sally Goldenberg
A local antiwar group says it may sue Hillsborough if the township refuses to change its policy on the use of public meeting rooms, contending it essentially charges citizens to exercise their constitutional right to free speech and assembly.
A new organization comprising residents of Hillsborough and neighboring towns called "Speak out against the US war on Iraq!" requested space in the municipal building’s multipurpose room for a Jan. 25 film viewing and discussion.
Having planned to co-sponsor the event with the registered nonprofit group New Jersey Peace Action, the antiwar group agreed to pay the township’s required insurance policy.
However, the group’s attorney said the township’s "hold-harmless agreement," which regulates use of township space, infringes on the group’s First Amendment right to the freedom of speech and assembly by making the organization liable for everything that occurs in the room while it is used.
The group’s lawyer, Bennett Zurofsky, modified the agreement so that the group is only responsible for personal injury and property damage, but the township said it will not bend.
The agreement states: "You will be responsible to make the township of Hillsborough whole from any claim, lawsuit, settlement or judgement that arises in or out of your use of municipal property. You agree to do so regardless of whether or not the incident arises out of your negligence, the negligence of someone else, or the negligence of the Township."
Hypothetically, Mr. Zurofsky said, if a right-wing group opposing the views of the activist organization files a lawsuit against the township for allowing the expression of the views of war foes, the antiwar organization could be held responsible for that suit.
"It’s a violation of New Jersey and federal constitutions. It imposes a cost on free speech and assembly. It’s inappropriate and improper," Mr. Zurofsky said.
He said the New Jersey Supreme Court case, Green Party of New Jersey vs. Hartz Mountain Industries, Inc. established a precedent against expensive insurance policies and hold harmless agreements for use of space.
In the 1999 case, the court favored the Green Party’s distribution of fliers for then-presidential candidate Ralph Nader in regional malls with only a small insurance cost imposed on them.
Because the Hillsborough multipurpose room is a public place, the township has even less of a right to impose the stringent agreement, Mr. Zurofsky said.
"A public building belongs to everybody," he said.
Thus he amended the agreement. If the township refuses to comply with the modified agreement, he said, the group might file a lawsuit.
John Coley, the township attorney handling the issue, said Hillsborough is within its rights by invoking the hold harmless agreement and will not change its position.
"It’s the normal use and occupancy agreement that you will see anywhere. There’s nothing unique about it. It’s not a very stringent document," Mr. Coley said.
The agreement protects the township’s funds, and thus the taxpayers’ money, should the hypothetical lawsuit by a right-wing organization be filed, Mr. Coley said.
"The township doesn’t want to use taxpayers’ money to defend litigation," he said. "The hold harmless agreement’s not something that’s onerous at all. We’re just protecting our staxpayers’ money."
He said the group must sign the hold-harmless agreement without modifications or it will not be eligible to use the township’s public space to conduct the event.
Director of Social Services Mary Ellen Stahley said the Girl Scout and Boy Scout troops in the township opted against using township space because of the hold-harmless agreement.
Bob Witanek, organizer of the coalition, pleaded the case in a letter to Mayor Tony Gwiazdowski.
According to the Jan. 17 letter, "Slightly relaxing the terms of the hold harmless would be a great benefit for the town since greater value would be reaped from the room and more diverse and educational programs can be allowed there."
Mr. Witanek said the group wants to reschedule its event for Feb. 8 in the municipal building.
Mr. Gwiazdowski emphasized the need for consistency. "No one is treated any differently," he said. "We’re not going to change for any group."

