Occupying the Courts: Protesters Present New Challenges

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The movement's risky strategy has put cities in a bind. But smart judges are managing to protect the First Amendment without abandoning common sense. 

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In a clear, reasoned opinion denying Occupy Minneapolis members the right to camp out in two public plazas 24/7 in violation of County regulations, federal District Court Judge Richard H. Kyle recently demonstrated that common sense and constitutional principles do sometimes coincide.

"(E)recting tents and sleeping on public property" is constitutionally protected, expressive conduct, Judge Kyle observed, but the right to engage in it is not utterly immune to regulation. Like other protected protests -- marches or rallies -- occupations may be subject to reasonable time, place and manner restrictions, including a ban on overnight camping in urban parks or plazas. The judge was unpersuaded by occupiers' assertion of a right to "express themselves through sleeping" on the plazas or by their alleged right to establish a tent city: "(T)here is no 'private constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures,'" he explained.

This decision does not leave occupiers bereft of First Amendment rights to continue their protests. They may "assemble (on the plazas) during any hour of the day" and post their signs. Protesters pledge to continue exercising these rights to assemble, and, as Judge Kyle sensibly observed, city officials and occupiers "are going to have to 'learn to live' with one another."

Why has peaceful coexistence -- pursuant to reasonable restrictions respecting the right to conduct regular protests but not indefinite, 24/7 occupations -- been so elusive in so many cities? There's fault on both sides. Occupiers have promoted thoughtless, uninformed notions of their alleged rights to appropriate public spaces (as I've noted), but city officials failed at the outset to outline and lawfully enforce consistent and reasonable time, place, and manner restrictions. Instead, mayors in Boston, Philadelphia, Los Angeles, and New York tried tolerating occupations, perhaps in the hope that occupiers would tire or be evicted by bad weather. (In the northeast, warming trends are occupiers' friends.) 

But toleration of 24/7 occupations proved a risky strategy: allow people to engage in an activity and they're likely to infer a right to do so -- especially if that presumed right is violently withdrawn. Belated eviction efforts involving instances of police brutality, militarism, and media black-outs have only exacerbated the sense of occupational entitlement and imbued occupiers with some moral as well as legal high ground. 

In addition, by tolerating and, in some cases, sympathizing with protesters one day and seeking to evict them the next, absent an orderly regulatory process, city officials have exposed themselves to arguable claims that they're arbitrarily violating rights previously afforded. In Los Angeles, occupiers have filed a federal lawsuit charging the mayor and police chief with enforcing anti-camping regulations inconsistently and with violating a right extended to occupiers by a city council resolution welcoming and applauding their protests.

So it's worth noting that in the Minneapolis lawsuit, Judge Kyle found that County officials had informed occupiers of unwritten policies prohibiting the erection of a tent city as soon as their occupation began. To "avoid confrontation," officials tolerated occupations at first but "eventually" began enforcing and formally codifying their policies. The Court considered and rejected claims that the County's regulatory process was constitutionally flawed.

Occupiers disagreed, and some defiantly put up tents, which were promptly removed. Occupiers may seek judicial intervention, but not all consider themselves bound by rulings they don't like. In part, this reflects the disorder of a relatively leaderless movement, and it poses a challenge to judges. In Boston, occupiers are in state court, seeking to enjoin their eviction, but as a group Occupy Boston declined the judge's request to vote on whether it would honor whatever order she eventually issues. Judge Frances McIntyre granted a temporary restraining order against the city in mid-November, which she extended yesterday. She'll decide Occupy Boston's motion for a permanent injunction by December 15.

Mayor Menino (who has complied with the court's order) denies any intent to evict, for the moment. But the city testified that the occupation presents a fire hazard, and the Mayor seeks the right to order an eviction without first obtaining permission of the court. Occupiers continue to press an extraordinary First Amendment claim to appropriate a public square indefinitely, testifying, "We are providing an example to all those who come through here on how to have a better society.''

That is debatable but also irrelevant. Occupiers intent on setting a bad example for the rest of us would have the same First Amendment rights as occupiers intent on setting a good one. Public squares are public forums required to provide equal access to all members of the public, regardless of the content of their messages or the goodness of their hearts. They are the spaces in which we all have to "learn to live with one another," and which we all have to learn to share, not appropriate or privatize. "Parks are for the people," occupiers insist. Exactly.
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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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