Mike Bloomberg, Esq.? Occupy Wall Street and Tents

By Russell Smith

It is getting cold out there for Occupy Wall Street (OWS). The occupiers planned ahead, ordering ten 16-by-16 foot and ten 11-by-11 foot tents designed to withstand frigid temperatures and stave off hypothermia.

One person already feeling ill: New York City Mayor Mike Bloomberg. Since OWS began, he has had the unenviable task of trying to appear tough on crime while simultaneously sympathetic to free speech. As a billionaire himself, he does not want to poke a stick at the other 99 percent, so he says “there is no easy answer … but the right answer is to allow people to protest.”  Then he finds about the high cost of policing the protest, so he says that the occupiers “are trying to… take away the jobs of people working in the city, take away the tax base that we have. We’re not going to have money to pay our municipal employees or anything else.”

Back in October, Mr. Bloomberg tried to draw a line in the sand. Referring to the small tents which were popping up in Zuccotti Park, Mr. Bloomberg declared that “[t]he Constitution doesn’t protect tents. It protects speech and assembly.”

Mr. Bloomberg’s impressive resume does not include law school, so it is not surprising that he seems to have misinterpreted the First Amendment. The Constitution does “protect tents”, and here’s why.  

The First Amendment protects not only our right to speak actual speech (a la “Four score and seven years ago”), but also to engage in “expressive conduct.” The most familiar example of this comes from the Supreme Court’s 1989 case, Texas v. Johnson. During the Republican National Convention, Gregory Lee Johnson burned an American flag in front of Dallas City Hall in protest of Reagan administration policies. Mr. Johnson was tried and convicted under a Texas law outlawing flag desecration.

The Supreme Court overturned Mr. Johnson’s conviction as a violation of his First Amendment rights. The Court determined that Mr. Johnson’s conduct was expressive because it was intended to convey a specific message that was likely to be understood by the recipient. Coinciding with re-nomination of President Regan, burning a flag was “expressive, overtly political…conduct [that] was both intentional and overwhelmingly apparent.”

Setting up a tent in Zuccotti Park, like a burning flag, is expressive conduct. While OWS has been attacked for not having a coherent message, the act of “occupying,” with people, placards, and yes, tents, is unquestionably the heart of the movement. (Exhibit A:  This OWS flyer: “What is our one demand?…Bring a tent.”)

Like flag burning, occupying conveys a political message. The infamous “We are the 99%” slogan calls upon politicians to institute economic reform. Politicians have even included OWS in their personal political agendas, responding both positively and negatively to the political occupation of Zuccotti Park.

The recipients of the message – the financial institutions – understand the point of view of the occupiers. They disagree, but they get it. In sum, plopping down a tent in Zuccotti Park is expressive conduct, protected by the First Amendment.

This is not to say protesters can occupy whatever they please. Private people or companies are permitted to ban constitutionally protected expressive conduct that takes place on their property. And limits on speech in public forums – like public parks, sidewalks or roadways – are permitted if a regulation furthers an important governmental interest and is no more restrictive of expression than is necessary.

So what is Zuccotti Park? It is a privately owned space, operated by the Brookfield Management Company, but maintained for public use. In 1968, as part of a deal to build a 54-story office tower, New York City required that the builder create a “permanently open park” for the public’s benefit to offset the congestion caused by the building of a skyscraper. So Liberty Park was born. In 2006, Liberty Park was renamed Zuccotti Park in honor of Brookfield’s chairman.

Prior to OWS, Brookfield placed bronze signs in Zuccotti Park which explains the Park rules: “NOTICE: 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.”

Plainly, the occupiers are in violation of these private regulations. If these regulations applied, then all of the occupiers could, as Brookfield has requested, be dispersed or charged with trespassing. But Zuccotti Park is not a private space like your apartment or even a Barnes & Noble, and the legal question is whether Zuccotti Park is a “public forum” in which a strict First Amendment test could apply.

Lincoln Center is privately owned, but the plaza on which it sits is owned by New York City. Lincoln Center and the City entered into an agreement which permits Lincoln Center to manage the plaza. In the late-1990s, a labor union was denied permission by Lincoln Center to picket on the plaza and a lawsuit ensued.

In 2000, a federal appellate court concluded that the plaza was not a “traditional public forum.” The court’s analysis rested on two issues. First, the City never expressly recognized the plaza as a public park. Second, the plaza’s primary function was to be a place for guests of the arts center to gather before or after attending a performance, not for the general public to use freely. Because the plaza wasn’t a public forum, Lincoln Center was free to regulate the space without complying with the strictest First Amendment test.

But Zuccotti Park satisfies both criteria needed for “traditional public forum” status, as laid out by the federal appellate court. In the 1968 zoning document, the City Planning Commission granted the zoning application because “the city gains what amounts to a permanent open park…it is principally because of this public benefit that the Commission has viewed this application with favor.” Clearly, the City considered the establishment of Liberty Park (the original name of Zuccotti Park speaks volumes) to be the constitution of a public park in which people could freely express themselves.

And unlike the Lincoln Center plaza, the primary purpose of Zuccotti Park is to be a space the public can use freely. The space is not maintained for hosting guests an arts center, sports arena, music venue or any other hybrid public-private purpose.

So move in the tents?   Hold on…

Even as a “traditional public forum,” expression in Zuccotti Park could be regulated by the City, so long as the regulation furthers an important governmental interest and is no more restrictive of expression than is necessary.

In 1982, a non-profit organization organized a campout by the homeless on the national mall in Washington D.C. While a permit was approved to place symbolic tents on the mall, the homeless were not permitted to sleep in the tents. The National Park Service had a rule that camping was permitted only in designated campgrounds. The non-profit challenged the regulation as an infringement of free speech, but in 1984, the Supreme Court ruled that the government had an important interest in maintaining the mall in an attractive condition and that the Park Service regulation furthered that interest by protecting the mall from camping-relating damage and unsightliness.

New York City could similarly argue that the tents erected by the occupiers are unsightly and cause damage to Zuccotti Park. The New York City Department of Parks & Recreation prohibits overnight camping in its parks.

So move the tents out?  Hold on.

Zuccotti Park is not a Parks Department park, but a unique public forum, more like a sidewalk than like Central Park. And while the New York’s criminal laws have been interpreted to prohibit sleeping on a sidewalk and impeding foot traffic, in 2000, a federal court in New York concluded that a blanket policy of arresting people sleeping on the sidewalk as part of a small, clearly marked and well-organized protest violated the First Amendment.

In all, it appears that the City is presently without the means to pack up the OWS protesters and their tents.

There has been much ado about Mr. Bloomberg’s failure to put an end to the occupation of Wall Street. But presently, mobilizing the NYPD to remove the occupiers would be unlawful. Any criminal charges filed against the occupiers would be dismissed as violations of their First Amendment rights. Almost certainly, civil lawsuits against the City would then be filed.

Perhaps Mr. Bloomberg has more legal savvy than I’d given him credit for.



6 Responses

  1. OWS Supporter says:

    Nice article

  2. Emma says:

    I hope they get these tents out of the downtown area. I live down there and it’s a mess.

  3. Yelling fire to express myself says:

    If you define anything done as expressive conduct protected by the first amendment would you defend the arsonist that burns down a house of worship to express opposition to a religious message? Further, in Texas v. Johnson, the court held that the government can not punish expression b/c it disagrees with that message conveyed by that expression. That holding however, does not stand for the proposition that any conduct that is expressive is protected.

  4. Jimmy says:

    The First Amendment only protects ones rights in “a reasonable time place and manner.” The city should be able to restrict OWS from sleeping there, because that is past the time, their permit allows them to demonstrate… They shouldn’t be able to have 24 hour demonstrations!

  5. G.T. says:

    YellingFire and Jimmy – You’re right. And looks like other cities are wising up to that. NYC is a tough place though. Lots of constituencies to try and satisfy. Bloomberg’s job is not easy.

  6. Russell Smith says:

    New York Law School Professor Nadine Strossen pointed out to me that it is not necessary to have a coherent message for expression to be protected by the First Amendment. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group, the Supreme Court held that private citizens organizing a St. Patrick’s Day parade had a First Amendment right to exclude a gay pride group, even if its parade conveyed no articulable message of its own.

    Thus, it’s unnecessary for occupiers to convey a specific message, like “tax the rich” or “banks are bad.” Rather, their conduct must be intended to convey some message and people viewing the expressive conduct should understand that some message is being conveyed. As Justice Souter explained in Hurley, otherwise, the First Amendment would not protect paintings, music or poems, many of which do not convey articulable or coherent messages