Judge gives Occupy Wall Street lawyers an extension to expand their lawsuit against the city and Brookfield

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Police during the Occupy Wall Street 'Day of Action.' (Adrian Kinloch)
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Nancy Scola

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A court will hear arguments that ongoing activity in and around the park violated and continues to violate the First Amendment rights of protesters—a thorny constitutional issue that could put the city's behavior under scrutiny for weeks to come, even if it is a difficult case for the protesters to argue.

After a conference call with participants in the case yesterday, New York State Supreme Court Judge Michael Stallman ordered this morning that protesters could have until late December to amend the lawsuit they originally filed against the city immediately after the late-night "eviction" of protesters from the park last Tuesday, November 15th. 

Originally, the city would have had to file a response to the original complaint tomorrow, and have to contend only with constitutional arguments about the clearing of the park and limited objections to the restrictions park-owner Brookfield Properties had in place before the clearing.

Under the new schedule, requested by the protesters' attorneys, Occupy Wall Street participants have until December 9th, two and a half weeks from now, to amend their petition.

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Alan Levine, one of the attorneys representing the protesters, told Capital in an interview that the Occupy Wall Street attorneys were asking for the extension because, in part, since the eviction they believe the city has been abusing its rights to police the area and the park.

The extension, he said, "gives us the time to transform a lawsuit that was about an eviction that occurred the morning we filed the lawsuit, but now is essentially over, into one that is about the current circumstances."

And the scope of that lawsuit could grow in the coming weeks if new complainants are added to the case. At the moment, the only named party on the side of the protesters is one Jennifer Waller, an Occupy Wall Street participant.

(Already, lawyers for media operations have written letters to the city and the NYPD saying they believe the First Amendment rights of reporters were violated the night of the raid; while there is no lawsuit yet, the letters describe incidents that would clearly provide a plausible basis for a civil hearing.)

In his Nov. 18 letter to Stallman requesting the conference call, Levine wrote that "the City's and [park owner] Brookfield [Properties'] actions towards the protesters, members of the press, bystanders and other members of the public—particularly in the past few days—have gone far beyond issues of public health, safety and public access"—the issues that prompted a court to allow the city to go ahead with the raid despite an attempt at an injunction—"and have far exceeded the scope of Brookfield's rules" agreed upon in court.

Levine goes on in the letter to describe various police actions, including creating a "frozen zone" around the park; conducting "warrantless and unreasonable searches of people and property"; preventing people from lying down in the park; failing to return property seized in the raid on the park; not allowing books or musical instruments into the park and several other actions.

While brief, Stallman's four-page order didn't seem to include any hint of friendliness to the occupiers' First Amendment case, which many lawyers believe will be a difficult one to make.

One of the issues that was glossed over during last week's rush of papers and filings: Do First Amendment rights even apply in a "privately owned public space"?

Zuccotti Park was created as a concession decades ago when U.S. Steel sought to bust height caps on its skyscraper at One Liberty Plaza. The company marked out a part of its property's footprint—Zuccotti Park—for public use in exchange for getting the height concession. As a result the park is privately owned, but open perpetually to the public by law.

"It's a significant constitutional question," Levine told Capital. "But it's our belief that this is a park like any other park."

As long as it is not a state actor but a private-property owner who is doing all the evicting and regulating, many lawyers believe, it seems as though the First Amendment ("The State shall take no action …") doesn't apply here any more than a government action to remove a man who is screaming political invective at me in my living room constitutes a state violation of his rights.

"Brookfield is absolutely not a state actor under the case law here," Douglas Flaum, an attorney from Fried Frank representing Brookfield, in last week's hearing. "It is called privately owned space because it is privately owned." 

Despite the fact that case law is fairly clearly on the side of the city on that point, the spirit of Mayor Michael Bloomberg's repeated references to the First Amendment rights of the protesters could make it an uncomfortable argument to advance in court. And in fact, the city doesn't seem to have decided whether to make it.

"First Amendment rights apply to government, not individuals, of course," said Gabriel Taussig of the New York City Law Department's Administrative Law Division; he's an attorney on the case. "The question becomes then whether this private property, because of its interaction with government and the city's requirement that it become open to the public, becomes a site somehow imbued with governmental responsibilities." 

The city hasn't formally argued the point one way or another yet, said Taussig.

BROOKFIELD PROPERTIES HAS, SINCE THE CLEARING OF THE PARK, instituted restrictions banning tents, generators, and other materials that likely are required for the success of a late-November camp-out in New York City.

"The subject of the case going forward," Levine said, "is those rules, and the abuse of those rules." 

"It's not clear," he said, "that those rules compel the security guards or police to poke people who are sleeping sitting up or lying down, or to not allow them to bring in extra clothing or food, or musical instruments -- all of the things that, in our view, having nothing to do with the existing rules." 

Brookfield has argued that the company is well within its rights to detail just how Zuccotti Park is occupied, so long as the park remains open 24 hours a day, per an agreement with the city over the space that dates back to the 1960s.  

"We have promulgated rules that comply with that fully," Brookfield attorney Flaum argued before Judge Stallman on Tuesday, "and are intending to and very reasonably do allow the protesters and demonstrators to be there to fully exercise their rights." 

A city attorney at the hearing seconded Brookfield on that point, adding that conditions in the park before it was cleared of camping protesters made it impossible for Brookfield to live up to its obligations to keep the park clean and accessible.

Girding the rules, argued Flaum, is the assumption that people are simply "not allowed to live in the park." 

Whether that's true, and what the nitty-gritty of "living" in a park means, is likely to drive the legal conversation over Zuccotti Park over the next weeks and months.

The Occupy Wall Street attorneys argue that the activities Brookfield seeks to restrict are precisely the most expressive elements of the ongoing protest, and therefore qualify as protected speech.

"The power of this symbolic speech resides in the fact that it is a 24-hour occupation," Levine argued. "It's not as if going into the park and then going home afterwards after holding up their signs conveys the same message."

  "That's why it has captured the attention of the nation and the world."

Arthur Schwartz, representing the Transport Workers Union locals, the Working Families Party, and New York Communities for Change, extended the argument to frame the crackdown by Brookfield and the New York Police Department on the domestication of the park. 

"We're talking about a response to speech activity," said Schwartz during last week's hearing, "and you have to apply the strictest of scrutiny to that activity, whether it's the rules or whether it's the actions of the police, in assessing where or not to say, 'You can't do that.'"

"What I've told everyone from Occupy Wall Street is that your rights are equal to the public's rights," said Norman Siegel, the well-known civil rights attorney who served for many years as the head of the New York Civil Liberties Union, in an interview with Capital yesterday. "If the public has a right to bring in pizza in a box, you can too."

"The idiocy here is the cops saying that you can't bring in the box," said Siegel, "but you can bring in eight slices one at a time."

Siegel recalls the debates in recent decades over whether it was just to roust people for being present in public parks simply because they do not have a home, especially when it's been shown that many who do are allowed to hang out in the park.

The extended timeline also presents another possibility: That the lawyers for the Occupy Wall Street protesters could seek a federal venue for the case.

"Those papers," the request for the temporary restraining order that was, initially, approved by Judge Lucy Billings of the New York State Supreme Court before 7 a.m. the morning the police cleared the park, "were prepared at one or two in the morning, and we sensed that we could get that into state court more quickly than we could get into federal court," Levine said.

Asked if that meant that, given the new timetable, Occupy Wall Street protesters might be taking their argument to federal court, Levine responded, "anything is an option."