By Mike Dorf
Last week I fielded a call from a reporter who was interested in the question of whether the Occupy Wall Street protesters would have a First Amendment right to remain in Zuccotti Park in the event that either Brookfield Properties (the property's owner) or the city were to try to evict them. My answer, in a nutshell, went like this:
1) A threshold question is whether to treat Zuccotti Park as a public forum or, if not, whether First Amendment protections apply in light of the character of the public easement that the city extracted from Brookfield in exchange for its development rights.
2) Assuming that the First Amendment does apply, the protesters could be subject to content-neutral, reasonable time, place, and manner restrictions. Preserving a park for competing uses in addition to protests would ordinarily count as reasonable. It would be unreasonable for a city to deny the organizers of a march or a rally a permit to hold that rally or permit on a mutually agreeable time and in a mutually agreeable place, but it would be reasonable to deny the organizers of a march or rally a permit to hold the march or rally every day for a period of months, if the march or rally effectively crowded out all other uses of the public property in question.
3) Thus, if litigation were to arise, I could well see the city prevailing if OWS insisted on staying in Zuccotti Park. However, given the large number of alternative public spaces in NYC, OWS would not need to apply to use Zuccotti Park. I would conservatively estimate that there must be at least 30 venues in NYC that would be appropriate sites for the OWS protest, so the protesters could apply to use each site no more than once per month and each day announce where the protest is going next. It would be unreasonable to deny the organizers of a protest or rally the right to use a public space for just one day per month.
4) The difficulty with this "moveable feast" approach is that the protesters would need to disperse each night. Thus far, a substantial core group has been sleeping in Zuccotti Park, but once they move to other parks, they could be subject to the city's 1 am park curfew and prohibition on camping in the city parks. For a fuller description of the law governing such matters, I recommend this excellent post from the NYCLU. The short of it is that under the Supreme Court's 1984 ruling in Clark v. Community for Creative Non-Violence (CCNV), a prohibition on sleeping in a public park will be upheld. As the NYCLU post notes, there may be circumstances in which CCNV can be distinguished, but OWS does not appear to present them. If anything, the protesters in CCNV had a stronger claim than OWS, because the former, but not the latter, aimed to dramatize the plight of the homeless by sleeping outdoors. Thus, for CCNV, sleeping in the park was itself a form of expression. Some OWS protesters may have that goal in mind, but mostly they want to sleep outdoors (or in tents in the park) just to keep the protest going. Because CCNV lost, it seems likely that OWS would lose on its weaker right-to-sleep-in-the-parks claim.
5) Should a legal confrontation result in a new regime in which OWS would have to disband each night and reassemble at a new site each morning, that would undoubtedly sap some of the strength of OWS, but it might not be so bad. Most of the protesters are sufficiently local to go home each night, and given the cooperative spirit of the event, those who have traveled from out of town would likely be given couch space on which to crash. There would be issues about where to store donated food and other supplies, but there also would be less of a need for some of these supplies. Indeed, an excuse to go indoors each night could actually be a boon for the protesters, many of whom might find their spirits flagging as the temperature drops.
6) That said, I am not happy with the decision in CCNV or its evident application to bar "camping" by groups like OWS. The notion of semi-permanently "occupying" a public space for political purposes is both a throwback to a much earlier American tradition of "mobbing," (celebrated by Larry Kramer in his book The People Themselves) and a self-conscious reproduction of the occupation of Tahrir Square and other places occupied during the Arab Spring. As mobs go, OWS is a phenomenally non-violent entity, and thus poses little threat to the public safety. It is not exactly a march or a rally, and thus permits for marches and rallies are not quite adequate substitutes for the occupation activity. Accordingly, if I were writing on a clean slate, I would want the First Amendment to protect OWS either in its current site or on a substitute city park, for as long as the protesters want to stay.