So. You say want to occupy something. As the Occupy Wall Street movement grows into a national protest, protesters in cities around the country are grappling with the same issues confronting the protesters at Zuccotti Park in Manhattan: What are your rights to speak, assemble, protest, and sleep in public spaces? And what are the best ways to avoid being arrested (Boston), evacuated (Denver), or pepper-sprayed (Brooklyn) as you protest?
As they like to say in that old Yiddish man’s accent: location, location, location.
For starters, the First Amendment is perfectly clear that you have a right to speak freely, and to "peaceably assemble." But those rights are hardly absolute, and courts have long allowed for neutral “time, place, and manner” regulations, which means that the government can generally prohibit you from, say, sleeping in public spaces, or blocking public sidewalks, or lighting massive fires, even if you are doing so as an exercise of your right to speak and protest. It is a uniquely misguided American notion that the First Amendment gives you the right to say anything you want, anytime and anywhere. Even members of the icky Phelps family follow the time, place, and manner restrictions when they spout their bile at funerals, and because of that—not because of their message alone—the Supreme Court protected their free speech rights last year.
So the best way to have your message heard is to understand that merely feeling really strongly about something is not the sole test of your First Amendment protections. As Wendy Kaminer puts it in the Atlantic, describing protesters who feel their First Amendment right to protest has no boundaries: “Occupy Wall Streeters rightfully incensed by a regulatory regime that creates and protects gross economic inequality should be among the first to recognize this fundamental principle—that everyone is equal under law.”
So, as unsexy as it sounds, the best way to protest successfully, in New York or wherever you may be protesting, is to try to follow the rules as best you can. It doesn’t mean you won’t get arrested. But it can mean you won’t get arrested for something trivial and avoidable.
The real problem lately is how to tell whether the regulations being used to shut down protest are bogus attempts to use neutral-sounding rules to suppress speech. One of the questions raised by last week’s threat to evacuate the hundreds of people at Zuccotti Park was whether they were creating dangerous and unsanitary conditions by failing to dispose of garbage properly. But as a group of attorneys from the National Lawyers Guild argued in a letter responding to this claim, what appeared to be a neutral rule was merely a pretext for breaking up the protest: “Under the guise of cleaning the Park you are threatening fundamental constitutional rights,” they wrote. “There is no basis in the law for your request for police intervention, nor have you cited any.” One of the sticky wickets for Mayor Michael Bloomberg is that even neutral-sounding reasons to break up a protest can start to sound pretextual.
Probably the most thorough exploration of the free-speech issues surrounding protest and Occupy Wall Street was offered last week by Christopher Dunn, the associate legal director of the New York Civil Liberties Union. It’s worth reading all the way to the bottom as he works through the questions of whether the park is public or private and whether sleeping as part of a protest is a protected activity. Dunn points out that, among other things, the protest at Zuccotti Park is complicated by the fact that the park is privately owned by Brookfield Office Properties, a private commercial real-estate company that was given the right to build a supersize building north of the park in exchange for creating a privately owned public space. (Here’s Matthew Yglesias on why that’s never a great idea as a policy matter.)
Dunn notes that because the park is privately owned, protesters there paradoxically have greater rights: If Zuccotti Park were a city park, it would be governed by New York City’s park bylaws, “including a 1 a.m. closing, the need for a city permit for demonstrations involving more than 20 people, and a ban on camping, all of which would be up to the NYPD to enforce.” As it is, however, the park's occupation has been subject so far only to Brookfield's rules and its request that the police toss out trespassers. Oddly enough, protesters may do better with private public spaces than truly public ones.
The case law on sleeping and protesting is both fascinating and hilarious. The most important case Dunn identifies is Clark v. Community for Creative Non-Violence, a 1984 decision from the Supreme Court about advocates for the homeless who were protesting (and sleeping outdoors) in Lafayette Park, across from the White House, and on the National Mall. The issue for the court was whether denying permits to sleep overnight as part of the protest violated the First Amendment. The court said it was OK to prohibit sleeping. At the same time, it conceded that “overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment.” It then got itself out of this legal and logical dead end by finding that the rule barring overnight protests was constitutional because it “narrowly focuses on the Government's substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence.”
Applying Clark to Zuccotti Park, as Dunn says, will involve balancing how the rules governing this particular space square with the First Amendment. For folks contemplating protesting, either in Manhattan or in your hometowns, Clark offers limited guidance: Mats are probably better than sleeping bags, which are better than tents. In general, you don’t want to do anything that looks like you are blocking sidewalks or roads. And take a lesson from the protesters at Zuccotti Park: If the city says you are being dangerously unhygienic, clean up.
But the most important thing any protester can do before heading out to a protest is to know what to do if you are stopped by the police. Don’t provoke conflict, don’t escalate, don’t say anything. There are limits to your right to protest, but there are also limits to what the police may do to protesters. Write your lawyer’s name on your arm. Seriously.
If you want to get arrested, it’s very easy to get arrested in America. But if you want to exercise your right to speak and assemble effectively, it’s easy to do that as well. This hardly means there won’t be confrontations, arrests, and mass evacuations in the coming days and weeks, and that courts will not be called on to balance the rights of protesters against the cities’ various rules. One of the great truths the OWS movement has revealed, and one that’s worth keeping in mind as the protests spread, is that in general, the police are not working against you. So long as you are smart, civil, and aware of the local rules and concerns, you can live to protest another day.