Putting Accessible Expression to Bed.

• Author: Odeh, Jamila A.
• Position: COMMENT

In 2011, the Occupy movement began. Occupiers seized space in dozens of public parks and in the American imagination, providing a compelling illustration of an inclusive format of political expression. In the courtroom, protesters sought injunctive relief on First Amendment grounds to protect the tent encampments where Occupiers slept. In 2017, the last of the Occupy litigation ended; but the ramifications the Occupy cases hold for the First Amendment and expressive conduct remain unexamined.

This Comment takes an in-depth look at the adjudication of Occupiers' First Amendment interest in sleeping in public parks. It analyzes the adjudication of the Occupy cases and contends that the pattern of judicial enforcement results from a desire to remove the appearance of disorder associated with houselessness. This Comment argues that the test used to set the scrutiny level for First Amendment expressive activity systematically disadvantages speech by and about houseless persons.

TABLE OF CONTENTS INTRODUCTION I. THE ANTI-SLEEPING ORDINANCE AND EXPRESSIVE CONDUCT A. The Criminal Prohibition on Sleeping B. Expressive Conduct Jurisprudence II. CONTENT-DRIVEN JUDICIAL ENFORCEMENT A. Cases that Flipped B. Cases that Vindicated Traditional First Amendment Rights C. Cases Without Relief Granted III. EXCLUDING ACCESSIBLE SPEECH A. Judicial Enforcement and Aesthetic Policing B. Silencing Houseless Speech CONCLUSION INTRODUCTION

It is illegal to be houseless (1) and unsheltered in most American cities. (2) In late 2010, two parents and their three children in Wenatchee, Washington, believed that their period of houselessness was nearly over. (3) After a year without housing, they were finally closing a lease. Late at night--long after public restrooms closed--the father was arrested for public urination. (4) Because of that arrest, the family missed its appointment with an apartment manager the next morning, and the opportunity vanished. (5)

The law against public urination that stymied the family's hopes for housing is part of a larger body of laws called "broken windows" policies. (6) These policies began three decades earlier in New York City, and a cascade of similar ordinances quickly swept across America. (7) In 2011, the family of five from Wenatchee remained houseless. (8) The criminalization of living unsheltered made housing unattainable. That same year, Occupy Wall Street began (9) and quickly spread across America. (10)

Occupy's key feature, twenty-four-hour protests in tent encampments, had its roots in tent communities set up by houseless people. (11) But as police worked to disperse the protesters, Occupiers learned what houseless people knew all along, that "biologically necessary activities are illegal when performed in American streets--not just peeing, but sitting, lying down and sleeping." (12) One houseless-outreach worker explained: "The city will not tolerate a tent city.... The camps have to be out of sight." (13) Yet visibility for the encampments was the protesters' explicit goal. (14)

Occupy put a national spotlight on the criminalization of public sleeping when several Occupy groups challenged anti-sleeping ordinances on First Amendment grounds. (15) Because sleeping in the encampments was an activity potent with political meaning, it was ostensibly protected by the First Amendment. But the anti-sleeping laws made this core aspect of Occupy's expression illegal. (16) Occupiers sought injunctions to cease enforcement of anti-sleeping ordinances. The courts, however, applied tests for content-neutral regulations and held that the sleeping restrictions were valid. (17)

This Comment argues that the use of content-neutral and content-based analysis for expressive conduct facilitates the systematic exclusion of expression by and about houseless people. Part I explains the development of anti-sleeping ordinances and jurisprudence on expressive conduct. Part II assesses the Occupy First Amendment challenges. Part III contends that when courts afford less scrutiny for content-neutral restrictions on expressive conduct, they also condone removing the appearance of houselessness from public spaces. Ultimately, the Occupy cases illustrate a more pervasive issue: courts have undermined the accessibility of expressive conduct in the public forum for all Americans.

1. THE ANTI-SLEEPING ORDINANCE AND EXPRESSIVE CONDUCT

   Criminal laws prohibiting sleeping in public and First Amendment jurisprudence on expressive activity converge in the public parks of American cities. Section I.A highlights criminal anti-sleeping laws. Section I.B explores First Amendment jurisprudence on sleeping as an expressive activity.

   1. The Criminal Prohibition on Sleeping

      Policing public space in a city to force houseless people elsewhere is a common way to make unsheltered people another city's problem. (18) Many ordinances criminalize sleeping in public, (19) even though most houseless people cannot find shelter indoors. (20) Therefore, compliance with anti-sleeping laws is effectively impossible for most houseless people. (21)

      Discriminatory enforcement is well documented. (22) Police cannot find and remove everyone who sleeps in public, so seeking out people who look houseless is an easier, (23) more enforceable approach. (24) Moreover, policing appearance is an overt goal in many cities. (25) Broken windows policies promote "the idea that eliminating visible signs of disorder deters more serious crime." (26) They stigmatize houseless people as a visible sign of danger. (27) But the threat is only "one of perception." (28) An increased houseless population does not necessarily correspond to a rise in crime. (29) More importantly, the policies dehumanize people by viewing them as problems. (30)

   2. Expressive Conduct Jurisprudence

      The First Amendment protects forms of expression beyond written and spoken words. (31) Conduct, including sleeping, can be communicative. (32) Sleeping is a particularly difficult form of expression to adjudicate, because it is "a nonexpressive everyday function, yet it may also be performed for communicative reasons." (33)

      The threshold question is whether conduct is sufficiently expressive for First Amendment protection. (34) The Supreme Court created a two-prong test for the inquiry. First, was the conduct "intended to be communicative"? (35) Second, would the conduct "in context ... be understood by the viewer to be communicative"? (36) If a plaintiff cannot meet the two-prong test, there is no claim. (37) If the plaintiff meets both prongs, the Constitution limits the government's ability to restrict the expression. The Court uses a balancing test to assess whether the governmental restriction is valid. (38)

      There are a few iterations of the balancing test that may apply depending on the nature of the government's restriction. (39) The first time the Court articulated a balancing test in the context of expressive conduct was in 1968, in United States v. O'Brien. (40) The case involved a Vietnam War dissenter who was convicted for intentionally burning his draft card before a large crowd. (41) But the relevant statute targeted his conduct, not his message. (42) Further, the government interest--the administrative ease of raising armed forces--was "unrelated to the suppression of free expression." (43) The Court propounded a test that applies when a restriction on speech is incidental, rather than intended to suppress speech. (44) The restriction is permissible "if it furthers an important or substantial governmental interest ... and if the incidental restriction ... is no greater than is essential (45) to the furtherance of that interest." (46) In effect, the Court created a balancing test in which an important governmental interest may outweigh incidental restrictions on speech. (47)

      Over a decade after O'Brien, the Court articulated a second balancing test. The time, place, or manner (TPM) test also covers expressive conduct in some instances when the regulation is content neutral. (48) This test applies when a content-neutral regulation limits the time, the place, or the manner--when, where, or how--the message is communicated. (49) TPM restrictions are only valid if "they are narrowly tailored to serve a significant governmental interest, and ... they leave open ample alternative channels for communication of the information." (50) If a TPM restriction is content based, however, the test will require strict scrutiny in order for the restriction to remain valid. (51)

      The relationship between the O'Brien and TPM tests is important. The two tests sometimes overlap. And in many circumstances, both apply. (52) This is because TPM regulations often impose only incidental restrictions on speech. The two tests are also substantially similar in their treatment of content-neutral regulations. O'Brien uses "important or substantial" governmental interest, and the TPM test uses "significant" governmental interest. (53) The Court has explained that there is "little, if any," difference between these standards. (54)

      The Court applies more scrutiny to content-based restrictions. For example, in Texas v. Johnson, the Court adjudicated a content-based restriction that targeted a particular message. (55) There, the respondent burned a U.S. flag and chanted, "America, the red, white, and blue, we spit on you," at the 1984 Republican National Convention. (56) The content-based regulation prohibited disrespectful flag burning, but it permitted respectful burning as a method to dispose of a flag. (57) The Court characterized this distinction as a content-based restriction on speech. (58) It required that "[a] law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires." (59) Similarly, as previously mentioned, where TPM applies, a content-based restriction will receive strict scrutiny. (60)

      In...