Thursday, November 17, 2011
Today's mass action named #N17 for November 17, two months after the start of "Occupy Wall Street" in Zuccotti Park, New York, is sure to result in further First Amendment and other constitutional controversies, adding to those of the last weeks.
The New York City "eviction" or "dismantling" of the Zuccotti Park encampment resulted in a TRO which was later rescinded, as we discussed most recently here.
The police intervention in Zuccotti Park included several arrests of members of the press. The Committee to Protect Journalists has issued a statement of protest as did other press organizations. [UPDATE: A useful tracking of journalist arrests by Josh Stearns here].
In addition to the arrests of members of the press, the police action was apparently scheduled at a time when the press was least likely to be present. These actions were reportedly defended by NYC Mayor Bloomberg as necessary to "prevent the situation from getting worse" and "to protect the members of the press.” The question of press access was considered by the United States Supreme Court in Houchins v. KQED, decided in 1978, in which a plurality of the Court stated that "the media have no special right of access" that was "different from or greater than the public generally." In KQED, however, the right of access involved a jail, not a public place. However, Justice Stewart's opinion noted that the First Amendment's free press clause should not be considered "an accident" and not merged simply with free speech.
The NYC police action occurred at the same time as police actions in other cities, apparently not by coincidence, according to conjectures from the fact of multi-city mayoral conference calls. A letter of complaint about police practices and the First Amendment is being submitted by multiple parties to the Assistant Attorney General for Civil Rights, Thomas Perez.
Meanwhile, the number of lawsuits arguing First Amendment issues has increased. For example, the Ft. Myers complaint which we discussed previously resulted in an 40 page Opinion by United States District Judge John Steele granting, in part, the motion for a preliminary injunction.
The Judge enjoined the enforcement of Ordinance §86-153(a), which states:
No parade or procession upon any street of the city, and no open-air public meeting upon any public property shall be permitted unless a special permit shall first be obtained. Any person desiring a permit under this section shall make written application to the chief of
police or some duly authorized member of the police department. Permits issued under this section shall be printed or written, duly signed by the chief of police or some duly authorized member of the police department after approval, and shall specify the day, hour, place and purpose of such parade, procession or open-air public meeting.
The Judge enjoined only the enforcement of the bolded portions of other ordinances:
Except for unusual and unforeseen emergencies,parks shall be open to the public every day of the year during designated hours. The opening and closing hours shall be posted for public information. Normal park hours are 6:00 a.m. to 10:30 p.m. unless posted otherwise by the recreation manager. Such hours shall be deemed extended by the recreation manager as necessary to accommodate athletic sports events, or cultural or civic activities.
[Prohibited]: Loitering and boisterousness. Sleep or protractedly lounge on the seats, benches, or other areas, or engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace.
On the other hand, a federal judge ruled from the bench after a five hour hearing that Occupy St. Louis was not entitled to a preliminary injunction against the enforcement of its ordinances regarding a 10:00pm closing of a city park.