Lawyers for Occupy Wall Street wade through 'legal morass' of First Amendment rights at Zuccotti Park
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Builders got to stretch zoning restrictions on building size and other considerations. In return, the public got a bit of breathing room in high-density parts of the city.
When, in February 1968, U.S. Steel applied for a special permit that would allow them to build a tower that expanded upon the city’s zoning and size restrictions, the city planning commission announced that it was the company’s plan for an open space across Liberty Street that won their approval.
“The city will gain what amounts to a permanent open park in the heart of open of the most densely-built up areas in the world,” read the 40 year-old documents, retrieved from the modern-day Department of City Planning. “It is principally because of this public benefit that the Commission has viewed this application with favor.” [See the 1968 documentation at the end of this piece.]
That ‘permanent open park’ bounded by Cedar Street, Trinity Place, Liberty Street, Broadway was completed in 1972. It was named Liberty Plaza Park. Eventually, the 54-story U.S. Steel Building became One Liberty Plaza. After the park was badly damaged during the events of September 11th, Brookfield, as owners of One Liberty Plaza, spent $8 million rebuilding the park, which was renamed for John Zuccotti, the chairman of Brookfield Financial Properties, as well as a former deputy mayor and city planning commission chairman.
The permanent sign hanging next to the ‘no tents’ one on a wall in Zuccotti Park today is a reminder of the space’s unusual provenance. Brookfield Financial Properties owns the space, reads the sign. The company is responsible for its maintenance. And yet, "complaints regarding this urban plaza may be addressed to the Department of City Planning or the Department of Buildings of the City of New York."
Still, for decades, little thought was given to what these spaces really were, after the day that the city and developers jointly signed off on their creation. Since the parks are owned and operated privately, evicting someone from them doesn't obviously constitute any kind of government action at all.
In 2000, HARVARD URBAN PLANNING PROFESSOR Jerold Kayden, along with the city’s Department of Planning and the Municipal Art Society, conducted a study of what was then the city’s 500-odd public spaces owned by private actors that was memorialized in a book called Privately Owned Public Space: The New York City Experience. The study of POPS, as they’re called, was needed, the city has said, because of the “real and perceived failures” of these spaces. Developers were receiving, and enjoying, the benefits of relaxed zoning laws, but were often giving back to the public spaces that were sub-standard, poorly-market, and generally unappealing.
When it comes to the design of these spaces, the city has scrambled to stay one step of developers; when builders experimented with putting uncomfortable seating in their private-public spaces, so as to discourage hanging around, city zoning rules were tweaked to ban the practice.
The city, Kayden wrote, generally expected the owners of privately owned public spaces to behave reasonably, using the practices of city parks as the measuring stick. A ban on sleeping overnight in enclosures? Reasonable. Dismissing undesirables? Telling people how long they can stay? Unreasonable.
But there is no real mechanism for regulating or standardizing these sorts of practices in privately owned public space.
Two years later, a three-judge Second Circuit panel—one that included now-Supreme Court Justice Sonia Sotomayor—would say in the Lincoln Center case, “We embark on uncharted waters.”
"Other fact patterns have and will arise to help sharpen the notion of reasonableness," wrote Kayden in 2000.
What about taking pictures in a POPS? Playing loud music? In-line skating?
“May an owner bar political candidates, organizational representatives, or activist individuals from seeking signatures for a petition or from handing out literature?" Kayden asked in his book.
In the fall of 2011, whether Brookfield is behaving in that spirit of reasonableness informs whether it is living up to its legal obligation to the public when it comes to Zuccotti Park.
Current New York City zoning regulations on hours of operation require that “all public plazas shall be accessible to the public at all times,” unless granted an exemption. There’s no indication in the public records that Brookfield has ever been granted permission to close at night.
At this point, there’s been little public debate about whether the First Amendment applies in these kinds of cases.
And so another important tactic for the protesters' lawyers will be to stir up the muddy waters of the definition of public space.
“This isn’t Key Food,” she said, referring to a privately-owned space that would doubtless gain support if a group of protesters set up tents for a month. “It’s a crazy sort of different space, but it’s not private. Brookfield’s role isn’t just one of ownership, and it has been designated a public space.”
From a certain perspective, it can look like Brookfield has been forced into an uncomfortable, and possibly untenable, position. The city has seemed to outsource to the company a role that it clearly never prepared for and traditionally is one handled by government.
On the one hand, Bloomberg et al are framing the taking and holding of Zuccotti Park as a First Amendment question, with all the constitutional high-stakes that implies. On the other hand, they’re presenting Brookfield as the ultimate decision maker, which would mean the First Amendment, from a strict constitutional standpoint, doesn't apply.
Brookfield is likely ill-equipped to serve as a proxy for the city, as many real estate companies would be; for a simple practical matter, there’s no website where one would have been allowed to go to arrange for a permit to officially use the space, as there is with true New York City parks.
And Brookfield has been practically plaintive in asking the city to step in and help clear the park. And yet again and again, it has been told, in public at least, that the buck stops with them. Speaker Christine Quinn and other election officials reportedly called, privately, for Brookfield to pass on the scheduled cleaning.
"I've asked what would happen if they cannot (reach a deal),” said Bloomberg about Brookfield and the protesters Friday, according to The New York Post. Saying that he was told that the company would then force a cleaning of the park, “From our point of view, it will be a little bit harder, I think, at that point in time to provide police protection.”
In a statement, Deputy Mayor Cas Holloway, who has oversight over the NYPD, announced on Wednesday that while Brookfield had announced their desire to clean Zuccotti Park, “The Mayor is a strong believer in the First Amendment and believes that the protesters have a right to continue to protest."
Similarly, Bloomberg spokesman Marc La Vorgna, put out a statement on Thursday that read, in part: “The protesters will be able to continue to exercise their First Amendment rights in Zuccotti Park, or anywhere else in New York City.”
The city seems to have conceded that Zuccotti Park is, in the public imagination, a public park. Also that their continued presence constitutes an exercise of the First Amendment. Does it not follow that kicking them out would be a violation?
“It’s less a legal statement, I think,” said the NYCLU’s Dunn, "than a public relations statement.”
“The precise First Amendment questions are unclear, and complicated, but if you take a step back, for all intents and purposes, it looks like a public space," he said. "Frankly, if you survey the public, a sizable percentage won’t understand that the First Amendment really only applies to the government.”
“So it’s completely understandable that whatever the legal niceties,” Dunn said, “Brookfield would be concerned with being depicted as anti-First Amendment.”
IF THE EPITHET 'ENEMY OF THE FIRST AMENDMENT' PROVES too much for Brookfield to bear, then many of these issues will never actually enter the court. But what if it does?
Jerome A. Barron, a former dean of the law school at George Washington University who has argued First Amendment cases before the Supreme Court, said that judicial behavior in First Amendment cases is a developing thing.
"Let's say 30 years ago or more, [the protesters' First Amendment argument against Brookfield] would be successful," he said. "We had cases in those days where, if something looked like a park, whether it was private or not, it was considered public property."
"During the Vietnam era, some courts were willing to say that even if a space is privately owned, it should be treated as quasi-public, and thus the First Amendment ran; something that's privately-owned can be treated as public for the purpose of First Amendment rights."
"But the attitude of the court since, and particularly the Supreme Court, has reflected an unwillingness of the courts to do that," Barron said. "With the Roberts, Rehnquist, and even Burger courts, we've seen much less of a willingness to construe as public something that really is privately owned, even if it functions as public."
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