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.”

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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.

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."

1968 Planning Document Establishing Zuccotti Park

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