Why The Eviction of Occupy Wall St. From Zuccotti Park Raised An Interesting First Amendment Question.

A bit off topic, but I couldn’t resist. For most folks, the question of whether the recent eviction of Occupy Wall Street (OWS) protesters from Zuccotti Park constitutes a violation of the First Amendment has very little to do with law and much to do with principle. Those opposed to the eviction note that the demonstrators were peaceful, the Mayor displayed clear animus to the protestors and their message, and that the claims of health and safety are mere pretext. Those who support the City’s actions argue that the protesters had essentially co-opted the park to the exclusion of other public uses and that the protesters were in violation of the park rules (usually eliding over the fact that the rules were adopted after OWS began) and that it is privatekly owned space in any event.

After reading the Order upholding the right of NYC and the owners of Zuccotti Park to prohibit tents and, potentially, other sleeping things such as sleeping bags, I believe this raised an interesting 1st Amendment Question for those of us who follow 1st Amendment law. Those interested in why this is actually an interesting question, rather than resolution of the question, can see more below . . .

First, we have a significant body of law going back to the 1950s and early-1960s around exclusion from private spaces generally open to the public, mostly revolving around the ability to maintain segregated parks when ownership was held by private parties. This predates the 1964 Civil Rights Act and its implementation and relies instead on the 14th Amen. prohibition on state discrimination following Brown v Bd of Education of Topeka, KS. Some also goes back to the “company town” cases. In any event, NYC did not dispute application of the 1st Amendment, so let us take as given that Zuccotti Park can (and, I believe, under applicable law, should) be treated as owned and operated by NYC for 1st Amendment purposes.

Under the 1st Amen., it is generally not permissible to target speech based on its content or the nature of the speaker. Such rules are subject to “strict scrutiny,” which I shall not explain here, but is generally regarded as “strict in theory, fatal in fact.” However, a state or federal government may impose “reasonable time and place” restrictions to ensure that all parties that wish it have reasonable access to the public space, that the purposes of the public space may be carried out, and that public health and safety is protected. Critically, however, a reasonable time and place regulation will be subject to strict scrutiny where there is evidence that the regulation is, in fact, motivated by animus to the speech itself, or to the speaker. There are criteria for making a fact based determination on this issue.

Here, it is undisputed that, prior to OWS, Zuccotti Park had no rules prohibiting the erection of tents, camping, or sleeping in the park. These rules, on which the City and Park owners rely for the eviction, were put in place after OWS set up their protest and began to attract national attention.

There are two ways to interpret this. One is that the experience of OWS demonstrated the need for the City/park owners to put in place reasonable time and place restrictions. It is not a per se violation to adopt rules after the fact, and in the face of ongoing behavior. To the contrary, sometimes the need for a rule is not clear until someone does something that demonstrates why a rule is necessary for a permissible purpose. At the same time, however,post hoc adoption in response to a specific speaker or speech can demonstrate that the assertion of a reasonable time and place motive is mere pretext for content/speaker based discrimination.

The case most favorable to OWS is probably Church of Lukumi Babalu Aye v. City of Hialeah. There, members of the Santeria Church, which practices animal sacrifice, sought to establish a congregation in the city of Hialeah. After the congregation had begun the process of acquiring permits, the city passed ordinances preventing animal slaughter outside of specified zones, with an exception for some limited number of pigs and cows slaughtered for human consumption. The Court held that the supposedly neutral time and place restriction was clearly pretextual and therefore subject to strict scrutiny.

As I noted above, the facts here are not nearly as clear cut as they were in Lukumi Babalu. Unfortunately, we may never get a chance to explore the merits, since this was a hearing on a preliminary injunction. The court’s order is rather terse, which is not surprising given the exigencies of the circumstance.

But the facts known and stipulated to by the parties indicate this is a more interesting 1st Amendment question than one might assume at first glance — and why the outcome of a full trial (if one ever occurred) would be hard to predict. On the one hand, the character of the rules is consistent with reasonable time and place restrictions. Unlike in Lukumi Balu, there is at least some evidence to support the City’s allegations that the ongoing use of the park for long-term occupation precludes other would-be speakers, frustrates the use of the public space for its intended purpose as a recreational park, and creates a public health and safety hazard. On the other hand, it is also possible to make a prima facie case that the City was motivated by particular animus to the speech and speakers, and that the adoption of the rules post hoc is merely pretext to discriminate impermissibly based on content/speaker.

Additionally, I would argue it is relevant (but not determinative) that the prohibited activity was clearly, at the time the regulation was adopted, intended as a form of protected political speech, that it has been highly successful as such, and that no other mode of speech consistent with the rules adopted would be as effective for the purposes of the speakers. Again, this factor is not determinative, but it does potentially weigh in favor of OWS.

Unfortunately, the court’s order does little in the way of explicit balancing of factors. It simply finds that the protesters’ 1st Amendment interest does not outweigh the importance of maintaining general public access and reasonable public safety precautions, and relies on the representation by the City that protesters will continue to have 24-hour access to the park subject to the rules against camping, sleeping in the park, or storing gas and other potentially hazardous materials in the park. On appeal, if there is one, I would hope to see the 1st Amendment issues played out a bit more thoroughly.

Stay tuned . . .

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