Time, Place and Manner Restrictions on Free Speech Are Enforced on Occupiers Nationwide

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Due to reasonable government interest, the occupy encampments are no more

In coordinated efforts in cities across the country, mayors used reasonable time, place and manner restrictions on the First Amendment to evict the Occupy campers. Over the last week, protesters in New York City, Oakland, Denver, Portland, Ore., Salt Lake City and St Louis, among others, were cleared out by police and city officials. In New York City’s Zuccotti Park, the birthplace of the movement, a federal judge threw the weight of the law behind the camping ban instituted by city mayor Michael Bloomberg.

So, what is the precedent for “reasonable time, place and manner restrictions” on speech otherwise protected by the First Amendment?  We learned the basics from Professor Jesse Choper.  His citation of Clark v. Community for Creative Nonviolence, during a recent podcast, turned out to be right on the mark as we’ve just seen in the recent crack downs on Occupy sleepovers around the country.

The case was heard by the Supreme Court in 1984, during another period of recession in the US economy. During this period the CCNV called attention to the plight of the homeless, protesting and setting up camp in Washington, D.C.’s Lafayette Park and on the National Mall. When they were evicted, the issue became whether the National Park Service’s regulation prohibiting camping in certain parks had violated the First Amendment right to speech – real or symbolic.

The network of National Parks includes the National Memorial-core parks, Lafayette Park and the Mall. Set in the heart of Washington, D.C., these parks are unique resources that the Federal Government holds in trust for the American people. Lafayette Park, roughly a seven acre square located across the road from the White House was originally intended to be part of the White House grounds. President Jefferson, however, set it aside as a park for use by residents and visitors. The Mall is similarly a public space, but subject to the same limitations and regulations set out by the National Park Service.

Under these regulations, camping in National Parks is permitted only in campgrounds designated for that purpose. No such campgrounds have ever been designated in Lafayette Park or on the Mall. It was this restriction that the CCNV alleged was “unconstitutionally vague” and  “discriminatorily applied.”

While the federal District Court granted summary judgment to the Park Service, the federal Court of Appeals, found that the “application of the regulations so as to prevent sleeping in tents would infringe the demonstrators’ First Amendment right of free expression,” and so the Supreme Court granted review of this decision.

The opinion of the court, delivered by Justice White, reversed the judgment of the Court of Appeals and stated that no First Amendment infringement had taken place: “Assuming that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment, the regulation forbidding sleeping meets the requirements for a reasonable time, place, or manner restriction of expression, whether oral written or symbolized by conduct.” Justice White continued to explain that the regulation is also content neutral with regard to the message presented, and still leaves ample alternative methods of communicating the intended message.

In short, expression, whether oral, written or symbolized by conduct, is subject to reasonable time, place, and manner restrictions. And in this case, as in that of the Occupy evictions, there is substantial government interest in maintaining the parks so that they are intact and readily available to millions of people who wish to see and enjoy them. To permit camping, then as now, would be totally inimical to these purposes.

Fast forward to the present and New York Federal Justice Michael  D. Stallman, responding to a plea by Occupy’s lawyers, followed precedent and ruled in favor of the city by prohibiting tents and sleeping bags in the park. Justice Stallman argued that the protesters did not effectively demonstrate that “the rules adopted by the owners of the property…are not reasonable time, place, and manner restrictions permitted under the First Amendment”. Moreover, the campers also failed to “demonstrate that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators and other installations” — to the exclusion of the landlord or “others who might wish to use the space safely.”

It is this last point Mayor Bloomberg and his compatriots were stressing prior to the evictions. For weeks, city mayors were voicing concerns over the health, safety and public order issues posed by the encampments. Mayor Bloomberg summed up the argument for his city with the view that:“New York City is the city where you can come and express yourself,” he said. “What was happening in Zuccotti Park was not that.” In taking over the park, the protesters were “making it unavailable to anyone else.” The mayor continued to explain that the law creating “Zuccotti Park required that it be open for the public to enjoy for passive recreation 24 hours a day…Ever since the occupation began, that law has not been complied with.”

For now at least, it seems the park has been cleared of campers and returned to the community. But protest organizers and sociologists warn against expecting the movement to wither away. Protests have already started to spread to Universities (although it is likely that officials will continue to block any attempts at overnight encampment.)  Some organisers have suggested that the movement will now start to reach out to like-minded political candidates in order to give the movement a more concrete presence in the political process.

What is certain, is that reasonable time, place and manner restrictions are something the protesters will either need to comply with for the foreseeable future, or otherwise engage in civil disobedience and accept the consequences as part of the movement.  There are precedents for the success of skillfully wielded civil disobedience tactics; whether Occupy will find both the necessary leadership and committed followers remains to be seen.

Related articles

• City Reopens Park After Protesters Are Evicted (nytimes.com)
• A better way to occupy Wall Street (ft.com)
• Does the First Amendment Protect the “Occupy” Protesters? (legallyeasy.rocketlawyer.com)
• Occupy Faces Evictions (legallyeasy.rocketlawyer.com)