Monday, October 31, 2011
As the "Occupy Wall Street” movement has spread to other locales, so too have controversies surrounding the First Amendment's scope. The public-private status of NYC's Zuccotti Park which we discussed here, has indeed proven to be unique, and most other occupations are occurring in public spaces placing the First Amendment and local government regulations center-stage.
Today in federal district court in Ft. Myers, Florida, for example, there is a hearing on an amended motion for preliminary injunction filed on behalf of “Occupy Ft. Myers” resisting the city’s attempts to strictly enforce what the plaintiffs describe as a “series of City Code provisions which severely circumscribed politically-oriented speech, assembly and association within the city.” Like most permit schemes, Ft. Myers' regulations (excerpted on the “Occupy Ft Myers site here) can be articulated as a prior restraint. Indeed, the plaintiffs in "Occupy Fort Myers" note that “Fort Myers Code § 86-153 prohibits any parade, procession, or “open-air meeting” without first having obtained a special permit from the chief of police. However, more problematical under the First Amendment are the details in the permit scheme that may make it a content (or even viewpoint) regulation. In "Occupy Fort Myers," the plaintiffs argue that "Fort Myers Code § 58-156, governing park policy, by its terms, targets all political speech and conduct to be burdened with the requirement of shutting down at 10:30 p.m. or not beginning prior to 6:30 a.m., while exempting athletic events, cultural and civic activities, and other non-political association and assembly.”
Perhaps the Ft. Myers litigation will be resolved as amicably as that in Dallas, Texas. The motion for a preliminary injunction filed on behalf of Occupy Dallas members (Florence v. City of Dallas), was opposed by the city, but the parties reportedly reached a negotiated settlement which moves the protest but allows it to continue with certain conditions.
On the other hand, the specter of the situation involving Occupy Oakland involving tear gas, rubber bullets and serious injuries is one that both parties presumably seek to avoid.
[image: Poster by Jimmy via Occupy Together]