Does the First Amendment protect “Occupy” tent cities?

by Russell's Rants

Originally published November 26, 2011

Occupy LA Protestors Negotiate With City AuthoritiesThe First Amendment protects both symbolic speech and peaceable assembly – both of which rights are implicated in the “Occupy” tent cities that have been set up from the East to West coasts, including in Los Angeles. For the courts that have already ruled on “Occupy” protests, the legal tension comes down to the occupiers’ right to protest for redress of their grievances on behalf of the 99% versus the local authorities’ objections to the 24-hour nature of the exclusive occupation – and the health and safety concerns that stem from it. So far, only the protesters from “Occupy Boston” have been successful in warding off eviction (at least temporarily), while those in New York, Oakland, Portland and, imminently, in Los Angeles do not appear to be faring as well in securing their rights to keep their encampments ongoing.
These nationwide protests seem to “occupy” a space somewhere between protected speech and civil disobedience – which given the nature of the message, may suit the protesters’ political goal of keeping their cause edgy and in the public consciousness.

The Supreme Court has long recognized that the First Amendment extends beyond pure speech to activity that symbolically conveys a political or social message – from burning of the flag to wearing black armbands in school. The High Court has also recognized the right to assemble and picket in peaceful and orderly protests – from lunch counter sit-ins in Jim Crow South to protest racial segregation to leafleting to residential marches in public streets. And public parks and streets have long been considered to be a traditional public forum to “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.” (Hague v. Committee for Industrial Regulation (1939).) The rub, however, is that like any other right, free speech is not absolute and may be subject to reasonable time, place and manner restrictions – so long as they are content neutral, narrowly tailored to further a substantial government interest and, importantly, leave ample alternative methods for protest available. (Frisby v. Schultz (1988).)

What is interesting about the “Occupy” protests is that the permanent nature of their occupation is part of the message: high-profile occupations of public parks in the face of the 1% to call attention to income inequality and joblessness. And given that the occupation is the message, there really is no alternative venue available to express the same message with equal impact – in other words, permanent occupation in a public space in direct proximity to the government and business interests sought to be influenced.

So does the Bill of Rights protect this occupation-style of protest?

In the New York case that permitted Mayor Bloomberg to empty Zuccotti Park of “Occupy Wall Street” protesters on November 15, 2011, Waller v. City of New York, Judge Michael Stallman actually presumed that the park was a traditional public forum and that the First Amendment applied to the owner of the park, which was a privately owned public-access plaza. Still, he held that the park owner had “the right to adopt reasonable rules [even after the occupation began] that permit it to maintain a clean, safe, publicly accessible space” and that the protesters did not have “a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of. . . public access. . .” In contrast, on November 16, 2011, “Occupy Boston” won a temporary restraining order prohibiting local authorities from immediately raiding the encampment at Dewey Square, finding that the protesters would suffer irreparable harm if suddenly evicted. But Judge Frances McIntyre set the matter for a hearing on a preliminary injunction on December 1st and excepted fire, medical emergency or violence from her order in the meantime. Coincidentally, December 1st is also the date for a preliminary injunction hearing related to “Occupy Youngstown,” so we will get to see how three lower courts view the issue of symbolic speech versus reasonable time, place manner restrictions.

The closest the Supreme Court has come to ruling on an analogous matter was back in 1984 in Clark v. Community for Creative Non-Violence, where protesters seeking to bring attention to the plight of the homeless set up a tent encampment on Lafayette Park in Washington, D.C. The protesters had a permit from the Park Service to erect tents symbolic of homelessness as part of their protest, but not actually to sleep in those tents overnight on park grounds. The Court sided with the Park Service, finding that its prohibition against overnight camping in the park was a content-neutral, reasonable time, place and manner restriction on the protesters. So their “Reaganville” came tumbling down. Clark is cited by those opposed to 24-hour “occupations” as precedent for localities closing them down. But the majority in Clark noted that the protesters had “ample alternative methods of communicating the intended message” about homelessness. The distinction from “Occupy” is that there really is no alternative method since “occupation” is the sin qua non of the movement.

Los Angeles has tried to propose an alternative venue. It has offered “Occupy LA” an office building and farmland downtown in which to move their occupation – essentially turning the movement into some kind of out-of-the-way kibbutz. The movement has rejected the proposal. Mayor Antonio Villaraigosa issued a statement Friday, saying that the city cannot “maintain the public safety of a long-term encampment” and ordered the shutdown of “Occupy LA” on City Hall grounds for 12:01 a.m., Monday, November 28th. So the tension between peaceable assembly and local time-place-manner regulations will be coming to a head shortly in Los Angeles.

There is some legal authority on the protesters’ side. In University of Utah Students Against Apartheid v. Peterson (D. Utah 1986), a federal district court found college students’ use of replica South African shanties erected on campus represented “symbolic expression which is protected by the first amendment.” Tellingly, however, while that district court upheld the anti-apartheid students’ right to protest with tents, it also required that their shanties be portable and that they vacate the encampment at night. A federal district court in Washington, D.C. validated a round-the-clock veterans’ vigil in a national park next to the Veterans Administration to protest the lack of sufficient disability benefits for vets in U.S. v. Abney (D.C. Cir. 1976), but this ruling pre-dates Clark by a decade.

The 24-hour tent-city style of “occupy” protests is something new, but not without precedent. Tent cities in Tahrir Square marked the height of the Arab Spring and brought down the Mubarak regime. And the original “Occupy Wall Street” protest seemed to take inspiration from similar tent cities in Tel Aviv protesting, and achieving changes in, government policies.

So the question is whether American “occupy” protesters must subject themselves to arrest in this country in order to exercise what all sides have conceded to be otherwise constitutionally protected symbolic speech and peaceable assembly. Civil disobedience has a long American pedigree, but given the lack of appropriate alternative methods and venues for true “occupation,” the Bill of Rights should have something to say before the occupiers have to fold their tents.