Occupy Protests and the First Amendment

 Occupy Protests and the First Amendment
by Sue Basko

UDATE NOVEMBER 12, 2001:  Yesterday, Occupy Santa Rosa was granted a camping protest permit by vote of the Santa Rosa, California City Council.   They were granted a permit for 100 tents, with the permit renewable every 2 weeks.  Santa Rosa is a gorgeous place, so this is sure to be a wonderful Occupy protest.  

UPDATE (Oct. 27, 2011) - OFFICIALS in Irvine, California decided last night that they think Occupy protest tents are part of free speech.  Stay tuned on this.   ALSO last night, five San Francisco officials from the San Francisco Board of Supervisors came to Occupy SF, amidst great tension because police had been seen amassing on busses in riot gear.  The officials used the peoples' mic to give a press conference and speak to the crowd.  They showed their support and stated they were there to prevent a situation such as happened the night before in Oakland, CA.

The First Amendment to the U.S. Constitution says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  States and cities are allowed to limit the time, place and manner of free speech and assembly, as long as the limits are content neutral and are geared to public welfare and safety or for legitimate public interests. 

With the Occupy protests, the question has come up whether a City can close a park at night, or if the City must allow protests to carry on all night.  The answer is that Cities can close the parks at night, as long as this is a content neutral law.  In most cities, the law is just the law and it applies to everyone, unless they work out some kind of special deal to stay in the park later, which usually involves getting a permit and paying for security and other expenses.  For example, in Chicago downtown parks, I have seen some special events going slightly past closing time (till midnight rather than 11 pm),  but those events were carefully planned with the City far in advance and expenses were covered.

Chicago: Last night (Saturday October 22), the Chicago police arrived at Occupy Chicago in Grant Park and announced the park was closing and anyone who did not want to get arrested should move to the public sidewalk and that those who remained in the park were going to get arrested.  The public sidewalk is right next to the park and so most people just moved onto the public sidewalk.  A large group with drummers moved just across the street.  About 130 people stayed in the park, and the police arrested them.  No one resisted arrest and the whole thing was very peaceful.   

The City of Chicago was not violating anyone’s  First Amendment rights by enforcing park closure at the stated closing time. People chanted, “Whose park? Our park .”  That is not exactly accurate.  It is a park owned by the people of the City of Chicago, and run by the City for use in ways that provide the most benefit to the people of the City.  That includes scheduling what happens when and where.  Chicago’s downtown parks host many music concerts and festivals, sports, and a wide array of events of all types.  Lollapalooza, the giant rock music festival, rents out the southern end of Grant Park for several days each year.  Millennium Park, also downtown, hosts popular free concerts that bring in crowds so gigantic that the park entrances have to eventually close off to any more entry because the space is at capacity. Grant Park also hosts Blues Fest, Jazz Fest, and Taste of Chicago.  Millennium Park hosts a series of free world-class symphony concerts as well as exhibitions of giant, fascinating art.    All this takes complex planning.  Other areas of the downtown parks are set aside as quiet gardens, seating areas, fountain areas, and other areas for peaceful contemplation, reading a book, or quiet visiting with friends.   So when a group of a few thousand people shout “Whose park? Our park,” the reaction is sure, you can protest there until the park closes at 11 pm and then you need to take it elsewhere.

Please see Where You Can Protest in Chicago and How.

Getting Perspective:  It is easy when you are in a protest group to believe that your group or your cause is the most important thing in the world or that everyone does or everyone should belong to it.   

 Keep in mind that in a big city like New York, Chicago, or Los Angeles, there are different groups protesting each day.  Yours is not the only protest group – not by far.  Each weekend, there will be major protests.  Each group has its special interests.  Each group believes their viewpoint and goals are crucial.   Cities have to accommodate all the protest groups, not just yours.  Most major cities have a system worked out for how they accommodate protests.

Try dropping by protests of groups you don’t belong to, groups protesting about things far removed from your experience.  It will help give you some perspective.  You will start to understand the level of responsibility the City and the police have in enforcing basic laws in the context of protesting.  Also, if you are white and educated, it may make you think about your privilege.  You may think your group should be allowed to protest all night in a downtown park.  Would you feel the same way if a group of Blacks or Arabs decided to stand all night in the park shouting, set up tents, and claimed the park was theirs?  Or would you be relieved when the cops kicked them out?   If you are with a group you consider progressive, do you think other groups, such as neo-Nazis, the KKK, or the Westboro Baptist Church should also have the right to stay in the parks all night?  That is what is meant by content neutrality: if your group were allowed to protest all night in the park, all other protest groups could protest all night in the park.  

A protest group can influence positive change.  Many or most positive societal changes begin in such ways.  Protest is important.  Just keep in mind that time, place, and manner restrictions do not violate First Amendment rights if they are the least restrictive way to meet a legitimate State goal (such as keeping the parks nice) -- and that the restrictions apply to all groups.        

Why Do Cities Close Parks at Night?  Chicago's first park lands were purchased and planned back in the 1860s  to provide a green area respite from the noise, dirt, and congestion of the streets.  Those living in apartments and congested areas of the city use the parks as their place for fresh air, contemplation, relaxation, exercise and sports.  Parks close at night for a lot of reasons.  One is to prevent crime, such as rapes, robberies,  assaults, drug dealing, trash dumping, gang activity, and very serious things such as the dumping of murdered bodies.  Another is to prevent drifters from making it their home.  Another is to give the space a time to rest, give the grass and other plants a time to breathe without humans on them.  If there are sprinklers, they often come on at night.  Also, night-time closings are a good time for cleaning and repairs, which are often done late at night or very early morning.  Closing at night also gives a somewhat more natural environment to the birds and animals there, who do better with natural rhythms that involve some quiet and dark.  All in all, closing at night gives the parks a rest and keeps them in better, greener condition for use by all.

Who Decides What the Constitution Means and How Do they Decide?  It is said that the Constitution is the supreme law of the land.  Then people ask:  How is it that a petty park closing law can trump the Constitution?  States and cities are allowed to make laws that limit the time, place and manner of peaceable assembly or free speech, if the laws are content neutral and if they are for some important state purpose in the public welfare.  For example, I just listed above many reasons why cities often close parks at night.  Sometimes people who are arrested under one of these laws will challenge the law.  If they keep challenging it to a higher court, they may get to the point where they can challenge it before the U.S. Supreme Court.  The U.S. Supreme Court gets to decide if it will or will not hear a certain case.  When the Court rules on a case, it usually sets a precedent in law for similar situations.  Therefore, the Court chooses cases that seem important and like they will affect many people.  

The people on the U.S. Supreme Court are called Justices.  There are 9 Justices on the U.S. Supreme Court.  They are appointed by the President and approved by Congress.  Once a Justice is on the Court, they are on for life.  Once in a while, a Justice retires for health reasons.  Being a Justice is a very lofty position.  People talk about conservative or liberal people sitting on the Court.  It is very important who is appointed to the Court.  There are certainly people sitting on the Court at any given time that some people think should not be there. 

The issue of whether parks can close at night is firmly settled and clear.  This does not interfere with anyone’s freedom of speech, because they can go anywhere else and keep speaking.  It does not interfere with anyone’s right to assemble, because they can assemble on the public sidewalk all night long, they can come back during park hours and assemble there then, they can rent a meeting room and talk all night if talking all night is what they want to do, and on and on.

I heard some young men saying they wanted to challenge the park closing laws in court so they could set a precedent.  Theoretically, this is possible, although for such a case to wind its way to the U.S. Supreme Court would likely take more than 10 years and cost millions of dollars in legal fees.  Then, the Court would not likely hear the case, since the right of Cities to close parks at night is firmly established.     

Camping or Sleeping Out in City Parks or on City Streets:  Most cities do not allow camping, other than in designated camping sites, if the city has any.  This will be found in the municipal ordinance of that particular city.  Cities define “camping” in different ways.  Some codes define camping as  any use of a tent or sleeping bag in a park or on the public way.  Some codes prohibit public sleeping.  Some codes prohibit lying down on a sidewalk.  If you are trying to plan an Occupation protest, or trying to figure out your chances of being arrested, you need to know all the pertinent parts of the law.  All these factors will come into play: Park closing time, sleeping, camping, use of the public way.

Or, if you are planning to use a plaza, you need to know:  Is this plaza a "public space" or is it private?  Is the plaza part of a park?  Parks almost always have different rules than the public sidewalk or a public plaza.  Then you need to know the rules regarding sleeping and/or lying down on the sidewalk or plaza.  You also need to know the laws about camping or tents.   You will find these things scattered all throughout a typical municipal code.  Your best bet is to skim the entire municipal code and read carefully any pertinent part.

Does Not Being Allowed to Camp Out as Part of a Protest Violate Our Freedom of Speech?  The U.S. Supreme Court ruled in Clark v. Community for Creative Nonviolence (1984) that free speech expression is not violated when municipalities or parks have laws that prohibit protesters from camping in the park.  The Court found that the laws were intended to protect the park environment and were applied to all people, not just protesters, and that the protesters had other means by which to express their ideas.

Read the note above that the City Council of Irvine, California announced that they view camping with a tent as part of a First Amendment protest right.  The City has a right to decide this, as does any city.  However, the interpretation must be content neutral.  This means Irvine will not be able to deny another protest group the right to camp based on their protest message -- although they may be able to deny another group the right to camp based on other factors, such as poor planning.

Some Cities have Occupation Protests Going.  How?  The ability to hold an Occupation legally usually depends on a quirk in the law or in bargaining with the municipal officials to allow it.  

New York: For example, at Occupy New York, Zuccotti Park is open all night, camping is not allowed, but sleeping is not prohibited.  So the protesters are sleeping all night on the sidewalk, but without tents.  Many of them are getting sick.  But they are allowed to stay there by following the technicalities of the law.  (Update:  Tents are now present in the park.  Update Nov. 15 2011: Protesters were removed from the park, tents and facilities were destroyed, protesters allowed back in with no tents or sleeping bags, no no lying down allowed, and park now closes at 10 pm.)

Smaller Cities: In some smaller cities or towns, people who want to hold an Occupation protest overnight are bargaining with their local officials to permit a limited-time overnight protest, for example, for a weekend.   Some people think this is corny or defeats the purpose or idea of an occupation, which they think must be the taking or conquering of some territory.  This possibly has to do with so many Occupy participants being  recent military vets from the wars in Iraq and Afghanistan.   They are home from the war now, but they are still thinking strategically in terms of seizing territory, encamping,  and occupying.  The average protester usually wants to attend a protest for a few hours and then go home and take a shower and sleep in a bed.  The idea of making a protest into a home and a lifestyle is somewhat new, I think.  (Update: I have since hear of the Bonus Army, which  set up camp in Washington DC after World War I to protest not being paid promised bonuses.  Their protest was violently crushed by government forces.)    It is a sign of how desperate people are with the current bad state of our economy and society, and how badly they want major change.  Still, for many groups, a bargained-for short term  Occupation protest works, is peaceful, and gets people thinking about change.   It may not be an occupation in the military terms of an occupation, but as a protest, it works.

See: 25 Ways to Occupy Without Camping
See: Occupy Santa Rosa Permit Conditions for discussion of a permitted Occupy protest.

Los Angeles: Los Angeles law does not allow camping, and parks close at night.  However, there is a court case settlement that allows sleeping on the sidewalk from 10 pm to 6 am.   Occupy LA made use of this and then after several days, the City allowed the protesters to keep tents on the park space at night. However, the lawn has sprinklers that have been damaged, the grass is now dry, and this may pose a situation where the protesters will have to be asked to leave since dry grass poses a serious fire hazard in Los Angeles.  Also, although smoking is prohibited in all Los Angeles parks, some protesters at Occupy LA are smoking.  The combination of flammable tents, dry grass, and cigarettes and matches may force the Fire Marshall to end the tent city.  Update:  Occupy LA was raided on Nov 30, 2011, the park was fenced off.  The group now meets on City Hall steps for  GA several times per week, with many protests and activities taking place each week.

This is another example of how law works: A Fire Marshall is an official who must make determinations of safety and has the power to revoke permits or close events.  For example, there is a weekly Farmers Market that for years has held a permit and used the space adjacent to the filled with tents by Occupy LA.  Last week, the Fire Marshall determined that since some of the Farmers Market vendors cook and use flames, that this could not take place within 100 feet of the tents.  That is good decision-making for safety, since tents are highly flammable, people are staying in them, and the grass is very dry.  All it would take is one misplaced spark for the whole thing to ignite.  The Fire Marshall moved the market to a nearby location away from the tents.

Fire Marshalls and Safety Inspectors:  When the Fire Marshall is doing his job, he or she is empowered to make determinations for safety.   Most cities require large group gatherings to get permits.  Part of the permit process is inspection by the Fire Marshall as well as by building inspectors.  This is all content neutral – that means, these people show up to inspect  for safety, whether you are running a protest, a movie premiere, a sporting event, or a street concert.   Generally, what they inspect will include any structures, such as stages or platforms; anything overhead, such as lights, poles, domes, big tents; any large props or puppets or mechanisms; and anything made of paper of fabric, checking to see if it is fireproof and if it is hung or suspended properly.

Food Safety: Another area of inspection at an Occupation protest has to do with food service.  The same laws apply to food service at a protest as would apply at a street festival or church carnival.  It is content neutral.  They don’t care what your political agenda is – they want to be sure people are not going to get food poisoning.  That usually involves having some kind of food service sanitation permit or licensing as well as having facilities to keep food sufficiently hot or cold, which an inspector measures using a thermometer.  Food inspectors are not violating your right to peaceably assemble, they are just making sure you do not all end out assembling in an emergency room with food poisoning. 

Rights Violations:  It is possible, though rare today, that a municipality will enforce laws based on the content of a group’s message.  If that is actually happening, contact a lawyer or rights group.

To help you understand the process of running a protest, please see these other posts: