Occupy the parks: restoring the right to overnight protest in public parks.

• Author: Ofer, Udi

Introduction I. Sleeping Overnight in a Park as First Amendment Protected Conduct II. Government Regulation of First Amendment Protected Communicative Conduct III. The Occupy Movement in a Post-Rock World IV. Restoring the Right to Overnight Protest in Public Parks INTRODUCTION

The Occupy Wall Street movement has generated passionate reactions of either disdain or support since its inception. On the one hand, opponents deride the movement for lacking a clear objective and vilifying the economic engines of the nation. (1) On the other hand, proponents praise the movement for bringing a much-needed voice to the victims of a decades-long march towards policies that benefit the rich over everyone else. (2)

What neither side can deny, however, is that the Occupy Wall Street movement has already achieved what many social movements never accomplish: it has elevated the concerns identified by the movement to the forefront of the national discourse. Regardless of whether one agrees that there exists a problem of economic inequality, we are talking about it.

Similarly, though less glamorously, this movement has challenged the law and the legal profession. The spontaneity and decentralized structure of the movement has made it difficult for lawyers to adequately represent the interests of the movement. Moreover, new legal questions have arisen about the use of privately owned public spaces for the purposes of political protests. (3) Finally, age-old problems associated with police reactions to political protests have also continued to challenge the legal profession's ability to respond quickly and adequately to the needs of the movement. This includes problems associated with police crowd control tactics, use of excessive force, false arrests, searches, denial of access to the media, and surveillance of political activity. (4)

This Article will focus on one of the key challenges that the movement has faced: overnight camping in traditional public forums like parks. One of the hallmarks of the Occupy Wall Street movement has been, as its name suggests, the symbolic occupation of institutions and interests, by taking over public (and sometimes private) space. (5) The movement began in Manhattan's financial district when its early participants, after failing to find adequate space in the heart of Wall Street, settled a few blocks away in Zuccotti Park, a privately owned public park. (6) They quickly made their presence permanent, erecting a little village with amenities such as a kitchen, medical station, media hub, and library. (7) Zuccotti Park did not have an overnight curfew like city-owned parks in New York City. (8) As demonstrators in New York City occupied Zuccotti Park, similar occupations of parks began to spread throughout the nation. (9)

A tussle for permanence quickly gripped the Zuccotti Park protestors and similar demonstrators as government officials in New York City, like other officials across the nation, disapproved of the demonstrators' overnight presence, and cited the prohibition on camping as the reason for the protesters to leave. (10) In New York City, Brookfield Properties, which owns Zuccotti Park, also objected to the protesters' permanent presence, citing not only a prohibition on camping but also alleging that the park, which is meant for enjoyment by the public and community residents, was being shut down by the protesters to the detriment of the greater public, and that security and health risks had arisen. (11) Brookfield Properties and New York City planned to clear the park of overnight demonstrators on October 14, 2011 but abruptly decided not to, following pressure from the public and elected officials. (12) On November 15, however, they succeeded. Although demonstrators were eventually permitted back inside the park at all times, they were prohibited from sleeping or camping in the park. (13) Similarly, Occupy demonstrators have been pushed out of other parks across the nation. (14)

As government officials began to object to the permanent camping in parks by demonstrators, the Occupy movement's participants were left with four options: (1) leave the parks; (2) engage in civil disobedience and risk arrest by staying overnight in parks; (3) attempt to negotiate a settlement that would allow them to stay overnight in parks; and (4) file First Amendment challenges to the restrictions on engaging in expressive and symbolic protest activities. Demonstrators have attempted all four options. Many have been arrested while engaging in civil disobedience. (15) Numerous encampments have been allowed to remain overnight following negotiations and settlement agreements, (16) and numerous lawsuits have been filed. (17)

The option of litigation has proven largely unproductive, as many years of bad precedent have greatly limited the ability of members of the public to make constitutional arguments for the right to engage in overnight protest activities in public parks. (18) Indeed, many lawyers now take for granted that municipalities can restrict the public's access to engage in overnight First Amendment activity in traditional public forums. (19)

This Article seeks to revisit the question of whether a traditional public forum like a park should be open for overnight camping when such camping is part of First Amendment protected conduct. Part I of this Article examines whether sleeping overnight in a park can be considered First Amendment protected conduct. It concludes that in the context of the Occupy movement, overnight sleeping in the park is expressive conduct deserving of First Amendment protection. Part II reviews the history that led to the current legal standard for government regulation of expressive conduct. It critiques the Supreme Court's abandonment of the requirement that courts consider whether less restrictive means are available to government officials when regulating conduct that includes First Amendment-protected activity. Part III examines the difficulties that the Occupy movement has had in winning court battles to protect the right to engage in overnight expressive conduct. The Article concludes with recommendations for local legislatures to restore the requirement that the government choose the least restrictive means when regulating expressive conduct in public forums.

1. SLEEPING OVERNIGHT IN A PARK AS FIRST AMENDMENT PROTECTED CONDUCT

   The first question to consider when determining whether the Occupy demonstrators should be permitted to camp overnight in a park is whether overnight sleeping in a park as part of a demonstration should be regarded as expressive conduct deserving of First Amendment protection. When should demonstrators' actions receive the same level of protection as demonstrators' words? Traditional conduct by demonstrators, such as marching on a street, is treated as conduct protected by the First Amendment. (20) But what about sleeping in a traditional public forum, such as a park, for the purpose of protest? Should this conduct be protected to the same degree as marching on a street?

   The Supreme Court has recognized that First Amendment protections extend beyond verbal expressions and has protected communicative conduct in many forms. In 1931, the Court overturned the conviction of a nineteen-year-old camp counselor for displaying a red flag as a symbol of opposition to the United States government, (21) and treated the act of displaying the flag as a form of political expression. (22) In 1966, the Supreme Court overturned the convictions of five black men who engaged in a sit-in in a racially segregated public library, (23) finding that a silent protest against segregation in a public facility fell under the protections of the First Amendment, and the that the convictions of the demonstrators violated their rights to freedom of speech, assembly, and to petition the government for redress of grievances. (24) In 1969, the Court rejected a school district's regulation that prohibited the wearing of armbands to school, recognizing that the wearing of an armband for the purpose of expressing certain views should receive First Amendment protection as a symbolic act, and finding that the ban denied students' their First Amendment right to express their opposition to the war in Vietnam. (25)

   The Supreme Court has provided additional guidance for when conduct should receive First Amendment protection. In 1974, the Court, in a per curiam opinion, reversed the conviction of a college student for affixing a peace symbol on an upside-down flag to protest the war in Cambodia and the recent killing of protesting college students at Kent State University. (26) Harold Oman Spence displayed the upside-down United States flag outside of his apartment window and taped to the flag a large peace symbol. (27) He wanted to associate the United States flag with peace rather than war. (28) A Washington court convicted Spence of violating a state statute forbidding the display of a United States flag with attached figures or symbols. (29) The Supreme Court reversed the conviction and held that the Washington statute as applied to Spence violated the First Amendment. (30)

   The Supreme Court recognized that not all conduct in which a person engages to convey an idea could be considered speech for purposes of First Amendment protection. (31) The Court emphasized two factors in determining whether conduct is communicative and deserving of First Amendment protection: "An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." (32)

   Context is key to the Court's analysis of whether conduct may be considered speech. (33) In Spence's situation, within the context of the war in Cambodia and the recent killing of student demonstrators at Kent State University, an upside-down flag bearing a peace symbol changes the meaning to the act of displaying a flag. (34)...