Representing an idea: how Occupy Wall Street's attorneys overcame the challenges of representing non-hierarchical movements.

Author:Marton, Janos D.
 
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Introduction I. Occupy Wall Street: New York Activists and Lawyers In The Spotlight II. Other Occupations and Their Legal Battles A. Meet The Occupy Lawyers B. "Client" Communication 1. Nashville 2. Portland 3. Washington, D.C 4. Atlanta 5. Cleveland 6. Delaware 7. Houston 8. Seattle 9. Boston 10. New Orleans 11. Pittsburgh 12. Miami 13. San Diego 14. Oakland 15. Minneapolis 16. Austin 17. Los Angeles C. Local Government: Friend or Foe? 1. Friendly Relations a. Rochester b. Maine c. Houston d. Delaware e. Pittsburgh 2. Unraveling Over Time a. Albany b. New Orleans c. Dallas d. Buffalo e. Miami f. Seattle 3. Hostility Comes With the Territory a. Atlanta b. Oakland c. Fort Myers d. Charleston D. Movement Victories 1. Nashville 2. Cleveland 3. Minnesota 4. New Orleans 5. Boston 6. Olympia 7. Fort Myers 8. Columbia 9. New Orleans Conclusion INTRODUCTION

On the morning of Thursday, October 13, 2011, some of New York City's most prominent civil rights attorneys gathered in a small office several blocks from Zuccotti Park, the home of the Occupy Wall Street (OWS) encampment that has generated headlines across the world. (1) The previous evening, New York City Mayor Michael Bloomberg had announced that the park would be "temporarily" cleared on Friday morning for a "cleaning." (2) To both occupiers and lawyers, the "cleaning" seemed to be a pretense to end the occupation in its present form and would permit protesters to return only under strict new rules. (3) The lawyers at the meeting debated the wisdom of filing affirmative litigation and settled on sending a strongly worded letter to Mayor Bloomberg, New York Police Department (NYPD) Commissioner Ray Kelly, and Brookfield Properties Chief Executive Officer Richard Clark, arguing that the proposed cleaning of the park would violate the First Amendment and that cleaning efforts from OWS made such an effort unnecessary. (4) They signed the letter, "Liberty Park Legal Working Group." (5) When a massive crowd flooded Zuccotti Park the next morning, Brookfield Properties called off the cleaning and handed OWS one of its most visible public victories. (6) Nevertheless, a month later, a midnight NYPD raid ended the Zuccotti Park occupation and, in the months since, no substantial litigation has been filed to defend the rights of OWS. (7)

This Article will evaluate the challenges that Occupy movement attorneys faced in representing large, non-hierarchical, democratic movements. During the fall of 2011, occupations took root in hundreds of communities across the country, with several occupations lasting into the winter (8) and many others continuing activist efforts without a permanent space. (9) A broad variety of lawyers have played critical roles in fighting for occupiers' First Amendment rights in court, negotiating with governments, and advising occupations in legally uncharted terrain. (10) This Article will explore how several attorneys got involved with the Occupy movement, liaised with it, worked with the consensus process, and addressed their clients' needs through a legal system that is part of the broader political system against which the Occupy movement protests. Many scholarly works have addressed the role of the activist lawyer in social justice lawyering. (11) In studying the first months of the Occupy movement, social justice lawyering principles and strategies were put to the test across the nation. Some successful strategies can serve as blueprints for the Occupy movement as it heads into the spring and summer of 2012, while other strategies serve as cautionary tales.

  1. OCCUPY WALL STREET: NEW YORK ACTIVISTS AND LAWYERS IN THE SPOTLIGHT

    Within weeks of occupying Zuccotti Park, OWS attracted international attention for its bold, direct actions and unique form of protest. It did so without developing a sophisticated legal support structure. The Activist Legal Working Group (ALWG), one of the dozens of "working groups" that arose to govern the internal working of OWS, had only a few regular members and focused on jail support and limited tabling inside Zuccotti Park. (12) Issues not applicable to most protest groups quickly arose. Some members of OWS entered into a retainer with a law firm, which the General Assembly disavowed days later. (13) An attorney registered "Occupy Wall Street" as a trademark, (14) in violation of a General Assembly resolution that required all legal issues that broadly affected the membership of OWS to be vetted by the ALWG. (15) Meanwhile, Zuccotti Park was full of lawyers hunting for business. In the aftermath of the infamous Brooklyn Bridge protests, an October 1, 2011 march during which over seven hundred protesters were arrested, (16) a Washington, D.C. based public interest firm, the Partnership for Civil Justice, quickly mounted a lawsuit by signing up arrestees in Zuccotti Park over the next few days without maintaining steady contact with OWS. (17)

    ALWG tablers faced questions ranging from zoning to welfare services to copyright law. Maralena Murphy, a non-lawyer ALWG member, lamented the difficulty in explaining to occupiers that there were not "strict, technical 'legal' answers to their questions, that their questions are more of a political nature, or that the legal area they are asking about was still undefined." (18) Murphy added that some occupiers unrealistically expected that the mere presence of lawyers could mitigate violent state and police conduct. (19) The ALWG unequivocally did not make legal decisions for OWS without consensus from the General Assembly or provide legal advice to individuals. (20)

    When solicited for legal advice, the ALWG referred individuals to the National Lawyers Guild (NLG) through its hotline. Similarly, when attorneys expressed interest in joining the movement, they were steered to the NLG rather than the ALWG. Matt McCoy, an ALWG member, explained: "[Lawyers] may focus on legal decisions that have political consequences, whereas activists who are not lawyers are more apt to focus on political decisions that have legal consequences...." (21) On a different note, Murphy found that, due to the large number of un-vetted lawyers who approached OWS, "[I]f they were willing to publically join the NLG, it was a way of declaring their political affiliation and therefore made them more politically trustworthy." (22) Despite this practice, the ALWG quickly filled with lawyers, law students and legal workers. Meanwhile, NLG became a steady presence at Zuccotti Park, tabling, assisting with criminal defense arraignments and flanking demonstrations as green-hatted legal observers. (23) Though these roles were all helpful and consistent with the NLG's tradition of supporting protests in New York, the group did not at first address the elephant in the room: whether the protesters had a right to protest in Zuccotti Park at all.

    The October 13, 2011 meeting concerning how to respond to the impending park "cleaning" represented a rare instance in which occupiers from a variety of working groups met with lawyers who represented the interests of Occupy Wall Street. (24) The letter that the meeting attendees generated that afternoon reflected an impressive mix of fact and law that debunked the claims that Brookfield Property made about the condition of the park while preemptively noting the First Amendment violations inherent in removing people from a park, even a privately owned public space:

    The enforcement action you are requesting raises serious First Amendment and other legal concerns. Under the guise of cleaning [Zuccotti] Park you are threatening fundamental constitutional rights. There is no basis in the law for your request for police intervention, nor have you cited any. Such police action without a prior court order would be unconstitutional and unlawful. (25) This decision to draft a letter had quickly won out over filing affirmative litigation. (26) The leading expert on the legality of privately owned public space, Jerold Kayden, wrote a comprehensive book in 2000, Privately Owned Public Space: the New York City Experience, but the book shed little light onto the legal status of the quasi-public parks. (27) The Liberty Park Legal Working Group did not want to jeopardize the occupation with bad legal precedent. (28) This position was easy to convey to the occupiers, none of whom were clamoring for affirmative litigation. After the letter was completed, few occupiers outside of the ALWG members would meet with the Liberty Park Legal Working Group for weeks, which attorney Yetta Kurland (Kurland) called "[a]n unfortunate capitulation to traditional hierarchical roles, rather than collaborative conversation." (29) During that time, Zuccotti Park, led by occupiers emboldened by the events of October 14, 2011, quickly mushroomed into a virtual city, housing dozens of tents, multiple generators, a weather protected medical center, and a variety of other amenities that, while beneficial to the movement, would be more difficult to defend on First Amendment grounds. The creation of the Spokes Council on October 25, 2011 further complicated communications between attorneys and occupiers. (30)

    During the early morning hours of November 15, 2011, when the NYPD cleared Zuccotti Park, arrested nearly two hundred occupiers, and destroyed large amounts of personal and communal property, the Liberty Park Legal Working Group took action. (31) The Liberty Park Legal Working Group filed a temporary restraining order, which the New York Supreme Court Justice Lucy Billings signed. (32) Though the temporary restraining order asserted enough information for Justice Billings to sign it, the pleading was fairly scant, attached no affidavits, and represented only one plaintiff, Jen Waller, who is an ALWG member and one of the few regular occupiers who was easy to locate and not arrested on that evening. (33) Eleven attorneys' names were attached to the motion. (34) The General Assembly, however, did not approve the filing....

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