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.)