Does the First Amendment Protect the “Occupy” Protesters?

Zuccotti Park and the New York protests highlight the legal intricacies surrounding the First Amendment and public spaces

With no one leader, no single enemy, no one solution, no end point, and no comprehensive set of demands – only that the conversation continue, the Occupy protests pose more questions than answers. Suggesting a new way of life, a new dialogue and a new way of looking at politics and democracy, the Occupy movement is stretching the limits of traditional governance and the boundaries of protected rights around the world.

Yes, the protesters have legally and constitutionally defensible rights to speech and assembly, but broadly given powers also have limits. The question posed now is what these limits are and who has the power to decide them.

Protesters in the U.S point to the freedoms enumerated in the U.S. Constitution, but as we know, events do not exist in isolation. Everything has a context and nothing is as simple as waving “the law” as if it’s a magic wand, and expecting the government to spring into action to protect those protesting against powerful interests.

To recap, here is the relevant section of the U.S. Constitution:

First Amendment;
“Congress shall make no law…abridging the freedom on speech…or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.”

But nothing in the constitution is black or white; it is worth noting that these rights may be lawfully abridged. The First Amendment’s guarantees, first and foremost, only protect people from their government, not from each other. Secondly, the government is able to determine the appropriate time, place and manner for citizens to speak their mind, as long as those restrictions are based on maintaining public order and aren’t allayed against a particular message.

The veneration of free speech is not in question; under the microscope is what constitutes legitimate government interest to foreshorten these rights. In recent years, freedom of speech has been controversially extended in the U.S. to include the symbolic action of burning a flag, and the freedom of fictional, legal persons in the Citizens United decision. Yet, there is still some confusion over the freedoms of speech and assembly that conflate in protest movements. For example, it is still illegal to protest on the grounds of the Supreme Court or within the halls of Congress, but it is legal, in the case of  Westboro Baptist Church, outside military funerals. The distinction made here is in the definition of the public forum.

This is precisely the legal conundrum the Zuccotti park protesters find themselves in – and it stems from the fact that most people do not understand that the First Amendment applies only to the relationship between government and people in clearly-defined public spaces. Zuccotti park is not a public park, but a privately owned public space, or POPS, owned by Brookfield Financial Properties. So, the argument goes, the First Amendment does not apply.

Or does it?

Jerome A. Barron, former dean of the law school at George Washington University, points out that judicial behaviour in First Amendment cases is an evolving thing. Thirty years ago, he argues, the protesters’ constitutional argument against Brookfield would have been successful because, in those days, “if something looked like a park, whether it was private or not, it was considered public property.” “During the Vietnam era,” Barron continues, “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.”

Recently, however, there has been much less willingness to construe as public something that really is privately owned, even if it functions as public.

Given the nuances of rights in public spaces, the Zuccotti parkers are doing all they can to continue to muddy the boundaries. The argument is similiar to the one made during the Vietnam era: if it looks like a public space, and people believe it is a public space, then it must be protected as such, and the rights therein treated in this context.

Illustrating this, New York Mayor Michael Bloomberg has become increasingly critical of the protests, but he has repeatedly defended the rights of the people to demonstrate on First Amendment grounds.

In contrast, across the continent in the bay area — the supposed liberal epicentre of the country– protesters were silenced evicted from the public Frank Ogawa Plaza. In response, the relationship between police and protesters quickly turned violent: protesters threw missiles and the authorities replied with rubber bullets and tear gas. The mass arrests that followed, some argue, produced a chilling effect that further limited the freedom of speech.

Until last night when the Oakland police pulled down barricades, diminished their presence and OK-ed protests until 10pm, Police Chief Howard Jordan defended the tactics of his department: “We are committed to allowing free speech, but the First Amendment doesn’t allow violence or endangering the public or property.”

So, it seems the the New York protesters’ rights have endured — for now. But, this does not mean that Mayor Bloomberg, like the authorities in Oakland, CA., and Atlanta, GA., where protesters were also forcibly removed, might not find compelling interests — health, public order, or quality of life — to clear them out.