October 6, 2011
Occupy Wall Street, Zuccotti Park, and the First Amendment
With the burgeoning protests of "Occupy Wall Street" including a packed (and permitted) march yesterday at Wall Street and the federal courthouses (photo below), there is an increasing focus on the First Amendment status of Zuccotti Park, once known (and by some renamed) Liberty Park. As the name change hints, Zuccotti Park was once public, but is now owned by a private corporation and named after its chairperson.
The publicly accessible but privately owned "park" causes some First Amendment ambiguity, although not one without precedent. Indeed, the "Plaza" outside Lincoln Center was the site of such a dispute involving a planned union rally. In a 2002 Second Circuit opinion written by a panel that included now-Justice Sotomayor, the court in Hotel & Rest. Employees Union v. New York Dep't of Parks, found that the Plaza was not a traditional public forum and the policy limiting organized public expression in the Plaza to "artistic and performance-related events" was viewpoint neutral and reasonable in relation to the forum's function and purpose.
Having used this case as the basis for an in-class discussion in First Amendment, I can attest to the difficulties it poses, especially since it bans public speech.
In an excellent and succinct piece in the NYLJ yesterday, Christoper Dunn examines the Lincoln Center Plaza precedent as it would apply to Zuccotti Park. Dunn writes:
If the Occupy Wall Street protest turns into a legal confrontation, the first step for the courts will be to sort out whether Zuccotti Park qualifies as a traditional public forum, an exercise that will entail a detailed examination of the unusual history and use of the space. Assuming, as seems evident, that the public's free access to the space imbues it with the qualities of a normal park for First Amendment purposes, there then would be questions about what rules actually apply to the space and whether they square with the First Amendment.
Dunn then turns to the "rules" that might apply and the protesters' actions, including "sleeping in the park." For those familiar with First Amendment doctrine, this immediately raises Clark v. Community for Creative Non-Violence, the 1984 Supreme Court case involving what we might now call the "occupying" of the National Mall to protest homelessness. Dunn's discussion of Clark as well as other precedent is again cogent and succint.
For those wishing to use Occupy Wall Street in First Amendment this term, this could be the basis of a great problem mixing forum doctrine and symbolic speech, and Dunn's brief article would be a terrific model answer.
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