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01/26/12 It's The Law: Constitution Protects Occupy Protests

Question: A group of protestors has taken over our local park. They not only have signs, but also set up tent camping. My children and I used to go to the park every Saturday, now the park is “occupied.” They don’t have a permit but the police tell me the protestors have a right to be there anyway and there is nothing they can do. Is that correct?

Answer: Occupy protestors claim the First Amendment to the United States Constitution provides protection for them in their occupy protests. The first amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Occupy protestors claim that their occupancy of public parks are protected speech and assembly. They also claim that their occupancy is a right of association and, therefore, further protected by the First Amendment.

In attempting to cloak themselves with the protection of the First Amendment, the protestors seek to extend a line of court decisions which have ruled speech includes more than talking and can include almost any form of communication. Those decisions include Texas v. Johnson, in which the Supreme Court ruled burning a flag in protest was protected symbolic speech.

However, not all speech is protected. Where speech harms or potentially harms others, it may be limited. In Schenck v. United States, the Supreme Court ruled speech that would harm others, such as shouting “fire” in a crowded theater, is not protected.

The courts have routinely ruled that obscenity is not protected, although there has been some difficulty in determining what is truly obscene. In determining protection under the First Amendment, the courts apply a balancing between individual and societal rights. The recent federal court decision in Occupy Fort Myers v. City of Fort Myers is a good example.

In Occupy Fort Myers, the occupying protestors applied for and obtained a rally permit. They were advised of the procedure for obtaining a special events permit for overnight camping, but failed to apply for the permit. At the end of the rally, they took over the park and occupied it. Over the next few days, the city worked with the Occupy Fort Myers in an effort to resolve the permit issue. Occupy Fort Myers was advised that they needed to get insurance and file a permit application. They claimed to have no money and inability to obtain insurance. About five days after their occupancy started, Fort Myers police began issuing citations to individuals for violating city ordinances and Occupy Fort Myers filed suit seeking an injunction to protect their Constitutional rights. The group asked for an emergency preliminary injunction, as the time required for a full court case and hearing would take too long.

The court noted that the purpose of a preliminary injunction is to preserve the position of the parties as best the court could until trial on the merits. The party seeking a preliminary injunction must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm without the preliminary relief, and that the balance of equity tips in his favor. That party must further show that an injunction is in the public interest.

The court examined the First Amendment in detail. It noted that the First Amendment applies to municipal governments. It also noted that the first amendment protection of speech and assembly is not absolute. A three-step process is useful when assessing whether government restrictions are valid under the First Amendment. First, determine whether the First Amendment protects the speech at issue, then identify the nature of the forum and third, assess whether the justification for restriction satisfies the standard.

The occupiers were gathering to “bring visibility to the influence of private money in the nation’s political process.” The court agreed that one of the primary purposes of the First Amendment is to protect free discussion of governmental affairs. However, the court had problems with the claim that the First Amendment protected what are essentially sleeping and camping activities. The occupiers claimed their tenting and sleeping was symbolic expression, delivering a message that would be reasonably understood. The court noted that the act of sleeping in a public place is not in and of itself Constitutionally protected. But, the court agreed that in the context of this case, tenting and sleeping in the park was symbolic conduct protected by the First Amendment.

The court moved on to the second step and determined that the public park occupied was a public forum. Finally, the court moved on to the third test, to determine if the restriction was justified. As the court noted, conduct protected by the First Amendment is subject to reasonable time place or manner restrictions consistent with standards announced by the United States Supreme Court.

First, the regulation has to be content neutral. The court found that it was.

The court then turned to the merits of the claims by the protestors. The protestors challenged four groups of ordinances, on ground that they were facially unconstitutional. That meant the protestors had to show that each ordinance could never be applied in a constitutional manner.

One ordinance required a city permit from the police department prior to parades or processions on any city street or public property. The protestors challenged that ordinance as a prior restraint of free speech giving unbridled discretion to the chief of police to show preference for non-political speech. The court agreed.

The last challenge was of two ordinances. The first prohibited unauthorized persons in a park from setting up tents, shacks or other temporary shelters. The second prohibited unauthorized persons in a park from sleep or protractedly lounging in the park, or engaging in loud, boisterous, threatening abuses, insulting or indecent language, or engaging in any disorderly conduct or breach of the peace. The occupiers argued the ordinances were vague and created uncertainty, and were therefore unconstitutional. The court completely disagreed as to the camping ordinance and only partially agreed as to the latter ordinance.

Since the court found that the occupiers would succeed on part of their Constitutional challenges, the court had to determine if the protestors would be irreparably injured if a temporary restraining order was not issued. The nature of the injuries complained of could not be cured by the award of monetary damages so the court found that the occupiers satisfied their burden of showing irreparable injury if enforcement of the ordinance was not enjoined. The court then applied a balancing test, and determined that harm to the occupiers outweighed harm to the public interest, particularly noting the public had no interest in enforcing an unconstitutional ordinance.

These are not easy cases. Although the occupation appears to step on your rights to use the park, a judge might well find the free speech rights of the protestors is superior when applying the supreme court balancing test. Based upon the Fort Myers case, it is likely a court would find the constitutional rights of the protestors outweighs your right of access to the park.

By: William G. Morris, Esquire

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