Column: ‘Occupy Wall Street’ and the First Amendment (New York Law Journal)

The “Occupy Wall Street” demonstrations against capitalism have morphed into police controversies with the arrest of about 700 people on the Brooklyn Bridge last Saturday and the Union Square pepper-spray incident the weekend before. But the ongoing occupation of Zuccotti Park – dubbed “Liberty Square” by the protesters – in the financial district remains the center of the burgeoning protest and raises interesting constitutional issues about the New York City’s ability to control activity in the park, including protesters sleeping there.

Though Zuccotti Park appears to the eye to be a conventional public park, it is not, and that raises a number of complicated legal issues, some of which the Second Circuit addressed in 2002 in a dispute over First Amendment activity at Lincoln Center in Manhattan. As for protesters’ right to sleep in the park, press accounts suggesting they have won that right in New York City are not entirely accurate. With the occupation of Zuccotti Park entering its third week and no end in sight, these legal issues may come to the forefront.

Sleeping Protesters

Most of those thronging Zuccotti Park leave by the end of the night, but a substantial group of protesters have been sleeping in the park overnight. Police officials have threatened to enforce a ban on sleeping in the park but have taken no action so far. Should that change, a case from the Supreme Court and one from the Southern District of New York may come into play.

In Clark v. Community for Creative Non-Violence, the Supreme Court considered a decision by the National Park Service to bar homeless advocacy protesters from sleeping in Lafayette Park, which sits across the street from the White House, and on the National Mall, a huge grassy area commonly used for protests in Washington, D.C. The park service had issued the group a permit to erect symbolic tents in the two areas for an extended period but had refused their request to sleep in the tents overnight. In denying the permit to sleep, the Park Service invoked a regulation that barred camping except in designated camping grounds, which neither park was. The group – known as CCNV – then sued under the First Amendment.

At the outset, the Supreme Court assumed without deciding “that overnight sleeping in connection with the demonstration is expressive conduct protected by the First Amendment.” (“Expressive conduct” is conduct with speech-like qualities, with flag burning being the most notorious example.) The Court went on to note, however, that “this assumption only begins the inquiry.”

The First Amendment does not provide absolute protection for speech, and expressive conduct is no different. Rather, when it comes to speech on public property such as parks and sidewalks (deemed traditional public fora), the Court long has held that the government can impose reasonable restrictions on the time, place, and manner of such speech. The question that the Court therefore turned to was whether the no-camping rule, as applied to CCNV, was a reasonable time, place, and manner restriction.

Generally, restrictions on speech in public places are permissible under this test if they are content neutral, are narrowly tailored to a legitimate governmental interest, and leave open “ample alternative means of communication.” That the no-camping rule was content-neutral was not disputed, but CCNV argued (and the D.C. Circuit had agreed) that it was not narrowly tailored to any meaningful interest because, the group contended, merely sleeping in the already-erected tents would cause little additional harm.

The Court rejected this. First, the Court suggested the First Amendment interests at stake were less weighty because the sleeping was less symbolic and more intended to facilitate participation in the protest. Because of this, the Court reasoned, the denial of the sleeping permit would reduce the number of people who would come to the site and thus was appropriately tailored to the government’s legitimate interest in preserving park property.

More troubling, the Court further reasoned, in terms that may bear on Zuccotti Park, that the Park Service had a legitimate interest in reducing protest vigils in parks generally:

Absent the prohibition on sleeping, there would be other groups who would demand permission to deliver an asserted message by camping in Lafayette Park. Some of them would surely have as credible a claim in this regard as does CCNV, and the denial of permits to still others would present difficult problems for the Park Service. With the prohibition, however, as is evident in the case before us, at least some around-the-clock demonstrations lasting for days on end will not materialize, others will be limited in size and duration, and the purposes of the regulation will thus be materially served.

Flash forward to 2000. In the midst of a series of First Amendment disputes involving protesters and the Giuliani administration, a controversy arose over proposed increases for rent-stabilized apartments in New York City. In an effort to pressure Mayor Giuliani to block the increases, a tenants’ advocacy organization planned a vigil in a public park next to the mayor’s residence at Gracie Mansion, to be followed by protesters sleeping on a public sidewalk across the street once the park closed to symbolize the risk of homelessness. Though the NYPD agreed to allow the park vigil, it informed the group that it would arrest protesters who attempted to sleep on the sidewalk, and the group sued. I represented them.

Unlike the CCNV case, there was no law or regulation that barred sleeping on public sidewalks in New York City. Rather, the NYPD had a practice of not allowing anyone to sleep on sidewalks for any purposes because, the department claimed, doing so would amount to disorderly conduct under a New York Penal Law section that bars persons from intentionally blocking pedestrian or vehicular traffic. Tracking the issues in CCNV, the question presented to Judge Kimba Wood in Metropolitan Council, Inc. v. Safir was whether this policy was a reasonable time, place, and manner restriction.

On the threshold issue whether the sidewalk sleeping in this specific protest amounted to protected First Amendment expression, Judge Wood accepted the parties’ agreement that it did. Nonetheless, citing CCNV, she stated she was not recognizing an unqualified right of protesters to sleep on sidewalks:

The Court emphasizes that this case does not involve, nor does the Court express any opinion concerning, the broader question of whether the City may prohibit lying and sleeping on public sidewalks when that conduct is not an integral part of a large, planned, publicized protest and is not accompanied by incidents of speech such as signs and literature explaining the protest.

Turning to the time, place, and manner analysis, she focused on the parties’ dispute about whether the City’s practice of banning all sidewalk sleeping throughout the city was narrowly tailored to the City’s asserted interest in enforcing the penal law provision barring the intentional blocking of pedestrian traffic and its concern about intoxicated people sprawling on sidewalks. In doing so, she noted the City conceded that the protesters had no intention of blocking the sidewalk entirely and would only take up half of the sidewalk between 1 and 8:00 a.m., a time when there would be few pedestrians; that they could be in the exact same location taking up the same area of the sidewalk while standing; that they would have marshals monitoring the situation; and that police officers would be present since the event was known to them well in advance. Given this, Judge Wood concluded the complete ban was “utterly unnecessary”:

These features that render the sleeping here innocuous, defendants acknowledge, are not idiosyncratic to this vigil but are general features of organized political protest in this city. Because the suppression of any such protest to the extent it involves the symbolic use of sleeping or lying on the ground is utterly unnecessary to further the interests that underlie the sleeping ban, the Court concludes that the ban is not narrowly tailored to the asserted interests.

As for CCNV, Judge Wood readily distinguished it on the ground that the Supreme Court had upheld the camping ban by finding it in fact reasonably advanced the government’s interest in preserving the parks. By contrast, she concluded, the NYPD’s ban on the Gracie Mansion demonstration would do nothing to advance its interest in enforcing the Penal Law.

Protesting in Private Parks

Zuccotti Park is an open plaza covering an entire block bounded by public streets near Wall Street; by all appearances, it is a standard city park open to the public. As it turns out, however, the Occupy Wall Street protesters landed (perhaps unwittingly) on property owned by Brookfield Office Properties, Inc., a private commercial real-estate company that occupies a large building immediately north of the park. The park apparently was created with a guarantee of public access in exchange for city permission to build an unusually large office building.

This has created an odd situation. Were this a normal city park, it would be subject to a host of formal New York City rules, 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 to the NYPD that it remove the protesters as trespassers on its property, a request the NYPD understandably has chosen not to honor.

To the extent a legal dispute erupts over use of Zuccotti Park, the Second Circuit’s 2002 ruling in the Lincoln Center case provides a partial roadmap. In Hotel Employees & Restaurant Employees Union v. City of New York Department of Parks & Recreation, the question was whether union activists could stage a rally and leaflet on the plaza of Lincoln’s Center as part of an organizing campaign.

Lincoln Center is privately owned, but the plaza upon which the principal buildings sit (and other parts of the complex) are owned by New York City. The City, however, entered into an agreement with the Lincoln Center owners to allow them to manage the plaza, and Lincoln Center had a practice of limiting events in the plaza to artistic ones. The dispute in the case arose when the union’s request for a permit to hold a labor rally and do related picketing on the plaza was denied and it sued under the First Amendment.

In addressing the union’s challenge, the most significant issue facing the court was whether the plaza qualified as a “traditional public forum,” which would afford maximum First Amendment protection, or whether it was only a “limited public forum” or even a “non-public forum,” in which case the constitutional standards would be lower. And this inquiry led the court into a detailed analysis of the ownership history of the plaza and the history of permitted use of the plaza. Ultimately, the Second Circuit deemed the plaza only a limited public forum because it had not been technically designated a public park and had been consistently restricted to artistic events. Given this categorization and its rationale, the Court readily concluded that barring the rally and the leafletting (which it conceded was a “closer question”) satisfied the First Amendment reasonableness test applicable to limited public forums.

Lessons for Zuccotti Park

If the Occupy Wall Street protest turns into a legal confrontation, the first step for the courts will be to sort out whether Zuccotti Park qualifies as a traditional public forum, an exercise that will entail a detailed examination of the unusual history and use of the space. Assuming, as seems evident, that the public’s free access to the space imbues it with the qualities of a normal park for First Amendment purposes, there then would be questions about what rules actually apply to the space and whether they square with the First Amendment. And to the extent a dispute arises about protesters sleeping in the park, Metropolitan Council and CCNV will return to the stage.

One can only hope, however, that these legal disputes never come to pass. The occupation of Zuccotti Park has been peaceful and well-organized, and everyone would be well-served to let it continue without confrontation.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.