Lawyers for Occupy Wall Street wade through ‘legal morass’ of First Amendment rights at Zuccotti Park

Zuccotti Park. (David Shankbone via flickr)
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Nancy Scola

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Late on the night of Oct. 13, after the Mayor's office released a copy of a letter they'd received from the owners of Zuccotti Park, the sliver of open space in lower Manhattan that has for a month now been home base to the Occupy Wall Street protesters, a group of lawyers sent a letter to the owners. They sent copies to the city's Corporation Counsel, the lawyers that represent the city in civil and criminal cases.

"The enforcement action you are requesting raises serious First Amendment and other legal concerns," the letter, drafted by New York City chapter of the National Lawyers Guild, reads in part. "Under the guise of cleaning the Park you are threatening fundamental constitutional rights."

But exactly how, lawyers working for the protesters and other legal experts say, is unclear.

"We’re researching it as we speak," civil rights attorney Margaret Ratner Kunstler, who is working with the Guild on behalf of protesters, said. “But trying to figure out the rules under which the protesters have been occupying the park is a total legal morass.”



That morass is the series of complications that arise in a First Amendment claim under the U.S. constitution given various applicable New York City zoning regulations, city planning agreements going back to the time of Mayor Lindsey; to the question whether First Amendment claims can ever be made against non-government individuals and agencies; and assumptions about how the public thinks about shared open spaces.

Kunstler attempted to lay out the philosophy of a First Amendment claim. “On what basis did Brookfield change the rules to say no tents, no sleeping bags, all these things?" Kunstler asked. "It seems to me that they don’t have the authority to promulgate rules whose purpose is obviously to impinge upon people doing First Amendment things.”

The rules to which Kunstler refers are posted on engraved bronze signs in the park. “NOTICE,” they read, “Zuccotti Park is a privately-owned space that is designed for use and enjoyment by the general public for passive recreation.”

To make the park safe and enjoyable for everyone, banned are camping, tents, tarps, sleeping bags, and lying down on the ground, benches, sitting areas or walkways.

In other words, Brookfield’s standing rules for Zuccotti Park ban those things that make an ongoing occupation an ongoing occupation.

“[The signs have] been made to look like they’ve been there forever,” said Kunstler, the widow of William Kunstler, an activist lawyer of the ‘60s, ‘70s, and early ‘80s known for defending the Chicago Seven and other high-profile clients.

“But it’s so transparent,” she said.

On Friday morning, in fact, I watched as a young protester walked up to the sign and peeled back its top left corner, exposing the gooey tape that had been used to stick it onto the park wall. Seemingly satisfied, he fixed the sign back into place, and walked away.

(Brookfield did not respond this weekend to a request for comment on how old the signs, or rules, were.)

Who cares how permanent Zuccotti Park’s anti-camping signs are or how long the rules have been in place? Christopher Dunn, associate legal director of the New York Civil Liberties Union, recently wrote a column on the organization's website highlighting past legal cases that shine light on the Occupy Wall Street situation.

And central in each case is the question of whether the laws governing the speech were in place before the protests began, well-constructed and fairly applied to the political actors involved.

In a 1998 Washington D.C. case cited by Dunn, for example, homeless advocates fought the National Park Service on a long-standing restriction against camping on the National Mall and Lafayette Park. The court found that tenting out was mainly meant to make it easier to protest, and the tents themselves were not a part of the expression of protest. Dunn writes: "[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."

The court also said that without the restriction, the parks would be overrun. Even public space, that is, can have limitations on speech and assembly in order to return the space to its intended uses.

In a 2000 case cited by Dunn, a tenants’ advocacy group fought a New York City Police Department practice of not allowing sleeping on city sidewalks. The group argued, successfully, that not only was spending a night outside Gracie Mansion weighted with meaning—a demonstration of the plight of homelessness—but that, occurring in the middle of the night, it did little to interfere with the police’s interest in protecting other citizens’ use of the paths.

In a 2002 case cited by Dunn, the Second Circuit supported Lincoln Center’s decision to prevent union protesters from rallying and leafleting in the central plaza that is home to its famed fountain, a space owned by the city and managed by the arts institution. The court decided that restricting the “limited public forum” to the artistic events that had always been its use was reasonable enough.

TWO STRAINS OF ISSUES EMERGE FROM the cases: The question of whether the restrictions imposed on the protesters remove what amounts to a form of expression, rather than just a mechanical function related to the protest; and the question of whether the owner or operator of the space has a contravening right against the speech rights of the protesters to return the space to its intended or normal use.

To many, it is difficult to understand how freedom of speech and freedom of assembly can be constrained by such apparently prosaic interests. But over and over again, these are the considerations that come into play in a real courtroom when interests private or public come up against a First Amendment claim.

In the United States, the First Amendment is sacred, but the freedom of speech and assembly are not, Kunstler said, inviolable rights.

“Whether the city can do reasonable restrictions on the times the park is open or on camping that might outweigh First Amendment considerations, that’s the test," Kunstler said. "There’s no question here that the act of occupying is part of the First Amendment considerations. But it’s not sacrosanct.”

The NYCLU’s Dunn sketches out the questions that should be asked to help figure out whether Brookfield is practicing the sensible limitation of the protesters’ rights, or whether they are violating them entirely.

“There’s a perfectly valid concern that Brookfield’s rules are directed at the protest,” he said. “But an argument that the company can make is, ‘Hey, we’re not hostile to their message, we’re just hostile to this use of the park.’”

“The easy route for Brookfield is to say that nobody can gather in the space at all if it gets in the way of people walking through the park, whether it’s political protests, Boy Scouts, checkers, whatever," he said. "Next is if they’re just targeting political protests in particular. If it’s a public park, that wouldn’t survive in court.

"But in a space like this, it’s more complicated. What they can’t do is single out a specific kind of protest. If it’s one hundred percent directed at Occupy Wall Street, that’s a problem. If they really are content agnostic, that’s one thing. But if there’s a secret email from Brookfield C.E.O. Ric Clark saying, ‘I really hate these people’s message,' that would put them in a very difficult position.”

When Brookfield complained to Police Commissioner Ray Kelly that the city needed to empty the park because conditions had “deteriorated to unsanitary and unsafe levels,” it prompted protesters to sweep, scrub, and mop the park themselves. And the general position of the protesters, which is to respond to all of Brookfield's complaints themselves, would seem to be narrowing down the non-content-based reasons for Brookfield's objection.

But there is another big problem here. Look closely at the wording, in case you don't remember it, of the First Amendment: “Congress shall make no law…abridging the freedom of speech…[and] the right of the people peaceably to assemble.”

Under the incorporation doctrine of U.S. legal theory, state and local governments are similarly limited in their ability to pass laws or enforce regulations that limit speech and assembly. But that's as far as it goes.

The constitution in this case protects citizens from their government, not from each other. And as a private company, Brookfield is one of us, not one of them, in Constitutional terms.

Indeed, Zuccotti Park isn’t a public park—at least not as we generally think of it. As New York City understands these things, it’s a “privately owned public space,” an innovation in urban spaces took root with the passage of the city’s 1961 zoning resolution, when the city was eager to build up Manhattan in particular while preserving open spaces.