What the Actions Over Zuccotti Park Teach Us About Public Spaces and Citizen Protest

The law, lawyers, and the court.
Nov. 15 2011 8:18 PM

Occupying the First Amendment

What the actions over Zuccotti Park teach us about public spaces and citizen protest.

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For nearly 60 days, demonstrators gathered in Zuccotti Park, a privately owned and very publicly occupied sliver of lower Manhattan, to Speak Truth to Power at what has become the hub of the Occupy Wall Street movement. But last night, Power was in no mood to chat. So shortly after 1 a.m. several hundred New York City Police surrounded the park dressed in riot gear, illuminated the encampment with klieg lights, and delivered—on behalf of Power—the same message that made Max von Sydow so charming in the Exorcist: “Get out.”

And get out they did. In a few hours time, over 200 demonstrators were arrested. Police cordoned off streets approaching the park, keeping the curious, the sympathetic, and most notably the press away from the action. Several journalists reported being roughly handled by police in the process, and an order closing the air space over lower Manhattan ensured that news helicopters couldn’t get footage of the raid.

That was the state of affairs when the First Amendment right to peaceably assemble smashed into the right of cities to protect their parks. And that was the state of affairs at 8 a.m., when Mayor Michael Bloomberg issued a statement affirming his deep regard for the First Amendment. He proceeded to give the sort of stern lecture about rights and responsibilities that sitcom fathers give their badly behaved teens, the tenor of which was that while free expression is generally a good thing, this nonsense had gone on long enough, and the city of New York had run out of patience.

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It is no exaggeration to say that what happened overnight could be a watershed moment for the Occupy Movement: Frankfort, Ky., San Francisco, and Cincinnati have all been occupied, but the encampment near Wall Street has been the spiritual and symbolic center of a leaderless movement that has taken the example of Zuccotti Park and turned it into a moral franchise of sorts around the world.

The question of whether OWS has worn out its welcome with municipal leaders seems to have been answered in the affirmative tonight. Two weeks ago, Oakland police used tear gas, rubber bullets, and flash grenades to disband the Occupy camp outside city hall, on orders from Mayor Jean Quan. Police in Atlanta, Albany, N.Y., Cincinnati, Nashville, Tenn., Salt Lake City, Portland, Ore., and other cities have also moved to evict Occupy demonstrators from public spaces in recent weeks.

Like Philadelphia Mayor Michael Nutter, many have complained that the encampments in their own cities have changed as dedicated protestors were joined—and to hear city official tell it—outnumbered by homeless people, drifters, and petty criminals. Camps, hailed early on as experiments in direct democracy, were evidently descending into chaos. This morning, Michael Bloomberg cast his lot with the doubters, and made it clear that in his New York, free expression will not come at the expense of public order:

From the beginning, I have said that the City had two principal goals: guaranteeing public health and safety, and guaranteeing the protestors’ First Amendment rights.

But when those two goals clash, the health and safety of the public and our first responders must be the priority.

You cannot fault Bloomberg for his goals; they embrace the fundamental tension at the heart of the First Amendment and public protest. Case law dealt the Occupy movement some fairly heavy cards. Their speech, on matters of core political concerns, sits at the top of the pantheon of what the First Amendment protects. And while Zuccotti Park is technically private, it functions as a public park, and was dedicated under local zoning laws for round-the-clock public enjoyment in 1968. Public parks enjoy an exalted status in the geography of the First Amendment, enshrined in the sort of language men like the first Justice Roberts used to conjure images of the Periclean agora:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

But practice First Amendment law long enough, and you learn that for every uplifting paragraph like that, there are a thousand cases bending an abstract right to the prosaic realities of protest.

By and large, the government gets to decide the terms on which even exalted places like Zuccotti Park are used for demonstrations, within limits defined by almost a century of case law. We saw that tonight. The rules speak to transparency and neutrality. The government can almost never deny access to a forum because it objects to the message the speaker wants to deliver. It can regulate who gets to use a forum to prevent inconsistent claims (like competing Thanksgiving Day parades), but generally it must do so according to clear, neutral guidelines so that the game cannot be rigged. It can impose limits on the volume of loudspeakers or the route taken by a parade.

In the First Amendment trade these are known as time, place, and manner restrictions, and courts will generally defer to the government if a restriction is crafted narrowly and designed to advance a significant governmental interest. Of course cases over restrictions on free expression in public spaces tend to turn on whether the interest asserted by the government is real, not pretextual, and whether the rule at issue actually moves the ball forward. Which brings us back to the events of this morning.

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