Universal Translator

Wednesday, November 16, 2011

Parsing the Order Ending the Occupation of Wall Street

So, we now have the Order of the Supreme Court of New York effectively ending the occupation of Zuccotti Park.  You can read it here.

(Note that the New York judiciary is organized, ah, differently than is the federal judiciary and that of all the other states.  In New York, the Supreme Court is not that highest court in the land.  That would be the NY Ct. of Appeals.  No, the NY Supreme Court is actually the trial court, and hierarchically is therefore the lowest court in the land.  No, I don’t know why they gave it that name either.)

As was easily predicted, the basis for the judge’s determination that OWS does not have a constitutional right to occupy Zuccotti Park is the ability of others to impose “time, place, and manner” restrictions on speech. 

Here is the pertinent portion of the Order:

The Court is mindful of [OWS]’s First Amendment rights of freedom of speech and peaceable assembly.  However, “[e]ven protected speech is not equally permissible in all places and at all times.”  Here, [OWS has] not demonstrated that the rules adopted by the owners of the property [prohibiting camping, sleeping or lying down in the park], concededly after the demonstrations began, are not reasonable time, place and manner restrictions permitted under the First Amendment.


[OWS has] not demonstrated 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 owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely.  Neither ha[s OWS] shown a right to a temporary restraining order that would restrict the City’s enforcement of law so as to promote public health and safety.  (citations omitted)

As a result of this Order, the rules established after the fact by Zuccotti Park’s legal owners can now be enforced against the protesters.  (For those previously unaware, Zuccotti Park is privately owned property that the owners were required to turn into a public park in exchange for being granted an exemption that let them build a taller skyscraper than is otherwise allowed.) 

This means – at the least – that protesters can still gather in the park with their signs, their “mic checks,” their General Assembly, their “jazz hands,” and their drum circles, but they cannot set up an encampment.  They cannot have tents, generators, tarps to shelter any electronic equipment, or sleeping bags.  While there seems to be nothing to prohibit them from staying and protesting in the park under these conditions around the clock, they also are not permitted to lie down.  So any such 24/7 protesting would almost certainly have to be done in coordinated shifts , which is probably something difficult to organize for a group that prides itself on having an unstructured form.

A few other things about the Order jump out as well.  To begin with, note the Order’s statement that OWS does not have a First Amendment right to remain in Zuccotti Park “to the exclusion of others who might wish to use the space safely.”  The Court seems to be suggesting that any designated public space may not be occupied by a single segment of the public (OWS) indefinitely, but that there is an implicit legal limit on the time that segment may occupy the public space before it must leave so that other members of the public can use the space.  I am not a First Amendment specialist, but I am unaware of any such provision in the law.

Second, even if that were the case, it appears that the Court simply assumed without evidence that other members of the public, i.e., non-OWS individuals, have been denied access to the park.  I don’t believe that to be true; indeed, just last week we were getting reports that in an effort to sabotage OWS the NYPD were directing mentally disturbed and drunk/drug-addicted homeless people to go stay at Zuccotti Park.  And since its inception, OWS has made clear that they welcome everybody to the park . . . even those who don’t agree with OWS.  Moreover, I haven’t read anything in the reports about yesterday’s hearing suggesting that any third-parties came forward to complain that OWS was preventing them from using the park.  So it appears that this is just a claim asserted by Mike Bloomberg and the real estate development company that owns the park, and that the judge accepted this claim as true at face value.

Third, note the Court’s reliance on allowing other members of the public to use the park “safely” and the City’s purported need to “promote public health and safety.”  I’ll have more about this in a subsequent post, but it also appears that the Court was concerned that the protesters' presence was creating a dangerous, unsanitary situation and that something needed to be done about that. 

Now, I doubt very much that any actual testimony about allegedly unsafe and unsanitary conditions was submitted at yesterday’s hearing.  Generally speaking, if a municipal government asserts a need to protect “health and safety” the courts go ahead and just adopt that assertion as a given, but nobody really knows what was going through the judge’s mind when he issued the Order or on what information he based his Order.  The New York Post has consistently painted OWS as a bunch of filthy, sex-crazed, sub-human fiends, and given L’il Mikey Bloomberg’s demonstrated disregard for the law and the Constitution, I wouldn’t put it past a little bird acting on his behalf to have whispered in the judge’s ear prior to the hearing’s commencement.

* * *

In any event, the results of yesterday’s hearing are about as one would have expected.  All other concerns aside, if there is a key phrase from the Court’s Order it is that “[OWS has] not demonstrated that the rules . . . are not reasonable time, place and manner restrictions permitted under the First Amendment.”

Get that?  Under our current First Amendment jurisprudence, any time/place/manner restrictions on the exercise of First Amendment rights are presumed to be constitutional, and the individuals attempting to exercise their rights carry the burden of demonstrating that those restrictions are unreasonable.  Unfortunately, unless and until the judiciary comes to recognize (as I have argued herehere, and here) that the modern American media has so changed the nature of public protest regarding national issues that nearly every such restriction should be presumed to be unconstitutional, this is a burden that First Amendment advocates will never be able to carry.

(Correction: I cross-posted this at Daily Kos, and a commenter there quite rightly pointed out that technically speaking the only reason OWS bore the burden of proof is because they were the ones seeking a temporary restraining order, and that "[h]ad this been an after the fact situation . . . the protester[s] would NOT have had the burden of proving that the time, place, and manner restrictions were unconstitutional." This is true, but for all intents and purposes it doesn't really change the analysis. The bottom line is that our current jurisprudence allows for a governmental agency to effectively end any protest by asserting a time/place/manner restriction and forcing the protesters to bear the burden of proof by seeking a TRO -- a burden that I submit protesters will almost never be able to sustain.

(It is very much the reason L'il Mikey Bloomberg feld completely secure in simply ignoring the Court Order that was issued earlier in the morning yesterday compelling him to allow OWS back into the park. Since by his actions he can throw the burden of proof on the protesters, and they almost certainly cannot carry that burden, at the end of the day -- when he prevails -- he can look at the Court and say, in effect, "yeah, I ignored your order but so what? I won anyway, so no harm/no foul.")

The way things are arranged now, if one wishes to protest “the system” and the only way to effectively catch the public’s attention is to encamp in a public space and stay there indefinitely, protesting peacefully, then such encampments can and will be disallowed by law.  Constitutionally, the system can do that because it will always be necessary to maintain public health and safety by imposing time, place and manner restrictions that – only just coincidentally – deny ordinary citizens effective use of their First Amendment Rights.

Oh!  And the people who get to decide whether the public’s “health and safety” are in danger from any such protest?  They are the same people against whom anybody upset with the system will be protesting.

But be of good cheer!  (he added snarkily)  The first goal of any system is, of course, its own preservation.  Evaluated under this criterion, the system is working perfectly.  We’re all screwed, of course, but the system is working just fine.

No comments:

Post a Comment