Freedom to assemble, not camp out indefinitely
The First Amendment’s guarantee of the right of assembly doesn’t necessarily include a right to camp out.
“The Constitution doesn’t protect tents,” New York City Mayor Michael Bloomberg said yesterday, as Occupy Wall Street protesters continued their month-long vigil at Zuccotti Park. “It protects speech and assembly.”
Bloomberg has it right, although the quasi-private nature of this particular park complicates things a bit.
Still, as the “Occupy” movement grows, there will be more conflicts over how long protesters can stay in public parks that usually close at nightfall.
Witness the current controversy in Cincinnati. A group called Occupy Cincinnati has filed a lawsuit in U.S. District Court contending that limits on the hours of use of city parks violates the First Amendment.
“This case is not about whether you agree with the political views of Occupy Cincinnati or Occupy Wall Street; it’s about the right of the people to assemble in a public park and to engage in protected speech,” said the group’s attorney J. Robert Linneman, according to the Associated Press.
It would be more accurate to describe the suit as testing the right of people to assemble on public property at whatever time they want to.
Courts have traditionally upheld the right of governments to manage and supervise public property. As long as there’s a rational basis for the rules and no point of view is being discriminated against, there’s no First Amendment violation. If the left and right alike are being told to go home at 9 so that the city can clean the park, our constitutional rights are intact.
Some city administrators are bending the rules and allowing protesters to stay beyond closing hours, but that’s a political decision with an eye toward keeping the peace.
In most cities, protesters could show up at a public park every morning and go home at dusk, and there would be no challenge to their presence. But of course, the very name “Occupy” suggests a constant presence, a commitment not to move from the premises in the face of perceived injustice.
Allowing that would require courts to say this kind of protest trumps cities’ basic administrative rights and their responsibilities to local taxpayers. That’s not very likely to happen.
Tags: assembly, demonstration, freedom to assemble, Occupy Wall Street, park, protest
31 Responses to “Freedom to assemble, not camp out indefinitely”
The First Amendment Center is an educational organization and cannot provide legal advice.
Ken Paulson is president and chief executive officer of the First Amendment Center at Vanderbilt University and in Washington, D.C. Previously, Paulson served as the editor and senior vice president/news of USA Today.
Gene Policinski, senior vice president and executive director of the First Amendment Center and president and chief operating officer of the Diversity Institute, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is an expert in First Amendment issues who writes for firstamendmentcenter.org and for other publications. Hudson teaches law and was a scholar at the First Amendment Center.
Tiffany Villager is director/First Amendment studies at the First Amendment Center, which she joined in 1993. She also served as the center’s research manager and research coordinator, and developed the center’s library.
On your own website, does it not state the following:
The right to free association extends beyond intimate relationships. Groups peaceably joined to engage in First Amendment activities also enjoy protection from government interference. To constitute “expressive association,” such interaction must be defined by common political, cultural or economic activism. Social gatherings that are intended for leisure and diversion do not qualify and may be regulated by the government for any rational purpose.
So wouldn’t the park’s ordinance closing at 11 only apply for LEISURE purposes? If people are utilizing a public park for “expressive association” as occupy mvmt clearly is, then wouldn’t the restrictions on that activity be unconstitutional? I don’t think the constitution has any time limit on the free assembly of people and so reasonably if it is longer than a day, people can expect to want to take naps and have shelter where they are assembling for expressive association, right?
I would say that you’re both right and wrong. As Bloomberg said, the First Amendment doesn’t protect tents (unless the tents are intended to symbolically convey a message, of course). However, the fact is that remaining on the park grounds constantly is an integral part of the message being conveyed in this protest, and is therefore protected as expression as well as assembly and petition. But if the tents aren’t part of that message (and there could be an argument made for it), then they’re a no-no.
On the other side, the right of the government to suppress assembly in the interest of public health — quarantine is the precedent — is well-established. If they don’t let the park get cleaned, then it becomes a public health risk.
Tim:
Just for the sake of my own education, how does a littered park become a public health risk? We know that paper, cardboard, metal, and plastic won’t create such a risk. So, about the only two things left are food and human waste, right? Now, except for publicly urinating on a statue that’s already been heavily decorated by pigeon doo-doo — and I think we can also eliminate the possibility of demonstrators squatting down in public and depositing piles of you-know-what — I presume you’re referring to leftover fast food tidbits that might send rats, squirrels, and birds into a ravenous rage. Of course, that’s true of many alleyways in cities all across America. Anyway, are you suggesting that those leftovers create a public health risk of dire proportions and that they must be cleaned up every evening to prevent igniting one or two diseases that will in turn decimate the population?
Actually, yes and no. While such levels of food litter and suchlike things are common in other places, those places aren’t also serving as a place of residence for more than a couple of people at a time. Rats, squirrels, and birds (especially rats) carry diseases that are communicable to humans. In a high-population-density area with a significant rat population, those diseases will get passed on. In an environment like an Occupy park, they’ll get passed on even easier. Now at the same time, no, the park doesn’t need to be cleaned up every evening. But at a guess, and I’m not a doctor or public health official, if it’s not cleaned up at least once a week…
Thanks for your reply, Tim. While the government must always be on guard for potential health risks — we certainly don’t want another bubonic plague, for example — it just seems that whenever the people want to exercise their First Amendment rights, local governments have a hissy fit over the inconvenience it causes them, upon which they come out swinging their billy clubs, dangling their handcuffs, and aiming their fire hoses, and officials will hurl unsubstantiated claims, such as large numbers of people posing a health risk, etc., or people like Bloomberg stating that tents are not protected by the constitution — anything, in fact, to get the horde to return to their homes and behave themselves. (Has anyone reminded the mayor that all the financial crimes committed by the Wall Street crowd aren’t protected, either?) Meanwhile, the rest of us tend to forget that the streets and the parks were built with taxpayer money and that the demonstrators are merely treading upon what actually belongs to them — and the rest of us. If it’s messy, or if others resent being inconvenienced — well, that’s democracy for you. Unfortunately, the Occupy Wall Street movement faces a sad ending. You see, after the tents are struck and the folks go home, the Wall Streeters will chuckle and, soon enough, it will be “business as usual.”
I know this is a little off topic but pigeons carry way more communicable diseases then rats. The big ones we associate with rats aren’t even transmitted by the rats it’s the fleas.
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.
so the first amendment says: Congress shall make no law abridging the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The dictionary definition of the word “abridging” is:
1 a: archaic: deprive
b: to reduce in scope : diminish
2: to shorten in duration or extent
3: to shorten by omission of words without sacrifice of sense : condense.
Taking away the tents was an attempt to reduce in scope, and to shorten in duration or extent of the Occupy Wall Street movement. So even if the tents are not a symbol of the movement, removing them was an attempt to make it harder to stay and demonstrate thereby attempting to “shorten in duration or extent”.
I hope to see many lawsuits filed against the government for all the violations against the first amendment that we see routinely nowadays.
Courts will generally show deference to government regulations that impact speech or assembly of any kind as long as the rules don’t target a viewpoint, are narrowly written to serve a governmental interest and there are still other ways to get the message out. This is the test the Supreme Court outlined in Ward vs. Rock Against Racism.
Governments can argue in these cases that they’re not allowing anyone to protest after dusk because of security and maintenance needs, and that the message can be delivered during the daytime.
In Cincinnati, the protesters’ best bet might be to argue that the city’s denial of a long-term all-hours permit was unreasonable and not viewpoint neutral.
Does this not corrupt the entire essence of protesting in the first place ?
A protest is meant to disagree with what the government is doing. To then allow the government to tell you what you are allowed to do while disagreeing with them and where and when you can do it seems contradictory and counterproductive.
The problem is that the government has to balance a lot of different interests. Others might want to use the park for a protest or even just a picnic or a stroll at lunch. Protesters could legally protest all they want and then leave and come back the next day, indefinitely.
Here is how that has always worked where I’m from doesn’t matter if it’s protest or a wedding. First come first served of course I live in the middle of nowhere.
The same judge in this case ruled in 2002 that Cincinnati’s law against religious displays during the holidays in another park was unconstitutional. It was upheld by the 6th Circuit, according to your website. (Chabad of Southern Ohio v. The City of Cincinnati) I agree with post #1 that the occupation is political speech, not leisure or recreation. The tents, etc. are symbols (not mere conveniences) of a political movement and should have the same protection as religious symbols if they are on display 24-hours a day.
How is a tent a symbol of protest? By that logic I should be able to go to the park and set up a restaurant that caters to the protesters. It is, after all a symbol of the protest. And also by the same logic, I should need to go through the regular formalities of applying for a business license, getting food handlers permits etc. etc. After all, all of that is a symbol of the protest as well.
The people have a right since it is in the constitution to assemble. no matter at what time the public parks close, no one has set a limit in the constitution to restrict thier rights to a certian level. i beleive that if the people need and want to camp out in public parks too occupy Wall St to send their message on what they like or dont, why are the law trying to interefere with them. The law is basically contradicting itself if it continues to find ways to make the Wall St protesters leave.
One consideration is what happens if other groups or individuals want to use the park to protest, or just to picnic. The law has to balance sometimes-conflicting needs.
Beyond symbolism, at least in our situation, our desire for shelter is not due to camping. While we are maintaining a 24 hour presence, we have a shift schedule, and no one sleeps on site.
Prohibiting utilization of some type of shelter inhibits our message. We have spent days and nights standing in the rain, and that is fine, but we have food and supplies onsite that need to be maintained, else they are wasted, in addition to literature, schedules, contact information, and other items. If said shelter could also accommodate a contingency of us from the elements, well that is just dandy, but it is hardly the primary focus.
24 hour occupation is integral to our message – that the economic disparity between classes is so vast, that political corruption is so widespread, and unpunished corporate malfeasance and crime is so rampant, it needs to be focused on 24 hours a day until changes are proposed and made. Because it occurs 24 hours a day. We occupy public space, because as the public it is our space, we paid for it, and for some of us, no matter how hard we work, we don’t have very much else. We stand together, and hold our assemblies in public, to encourage others to join us, and to illustrate that dissent is OK, no matter who else may be listening.
The method by which we occupy is vital to our redress of grievance, as the vast majority of our politicians are aware of public opinion, and choose to act instead for corporate rather than public interests, without regard to the citizens they serve, nor to the long term consequences of their actions, and the actions they allow others to take.
Justification has long been a part of decisions on First Amendment issues, and despite perceived definitions and previously allowed limitations, meritous exception is always permissible.
And if they move from one park to another so the previous site can be cleaned by the city? If the city doesn’t stand by what it says it’s doing and clean the park and if the protesters keep cycling locations but staying nearby, then this is all a political move to surpress the first amendment and the right to peacefully assemble. Occupy doesnt necessarily mean one spot. A change of tactics and they’ll come up with some other excuse to go after these people to make them stop.
By your definition, occupy doesn’t necessarily mean one spot. By the Mayor’s definition, occupy doesn’t necessarily mean tents in the park.
The courts also traditionally upheld segregation and before that slavery and so on. Until enough people stood up and said enough is enough. This is the entire principle of a protest to begin with. The power is not with the courts to say what is ok or not it’s with the people first and foremost. It seems to me the people are speaking and no one is listing.
Could you please comment on the actions taken in the Legislative Plaza last night against the Occupy Nashville protesters? Seems that the enactment of new rules and regulations is an obvious attempt to silence a particular viewpoint.
I also believe that tents are easily integrated into the protest as being homeless is the plight of many of the 99% as the atrocities committed by the government, health care and financial entities have created the vast proportion of the homeless population.
Even if the no camping rule is somehow deemed appropriate, are the new rules requiring permits insurance and conclusion of activites by 4pm constitutional?
While governments can pass regulations to further public health and safety, those regulations have to be “content-neutral” and not target a specific protest or point of view. The government’s actions in this case raise serious constitutional questions. The rules can’t be content-neutral if they’re designed to get this particular protest out of a public place.
How does a city government (and the courts) balance the rights of competing users for a public square or park? When a group “occupies” a space for protest, they are generally granted extra privileges to facilitate free assembly and speech. But in essence they have also “taken” the space from other users, who come for recreation, other political and religious groups who also want to assemble in that space, and commercial enterprises (local concert series) that are essential to the quality of life in a community. I know that many of these other groups have planned well in advance, gotten permits from the city, and in some cases paid fees for the use of that space. They have a contract with the city and expect the contract will be honored. So when a spontaneous demonstration takes over that space for an extended period, how does the city and courts decide among those competing users? Can the city remove the demonstrators, to prepare that space for scheduled events, and to give other users the right to use that space? What legal standards must the city meet to take such dramatic action to end a civil protest?
A city must approach these balancing questions you raise in a content-neutral way. That is, whatever action is taken in regard to protesters, it must not be because the government likes or doesn’t like the protesters’ message. A government must indeed take into account the needs and wishes of other segments of the public when it comes to regulating the use of public space.
I’ve written a whole blog about the Occupy protests and the First Amendment. Please see the various entries at http://occupypeace.blogspot.com This is a topic I dearly love and so I have written a great deal about it.
The legality of each Occupy location is unique, because the nature of each location and its applicable laws are unique. However, the differences in the laws have nothing to do with First Amendment – they are just differences in local laws with regard to closing time, what is considered “camping,” and whether the protesters chose to stage their protest on the public way, in a park, on other public property, or in a POPS, as in Zuccotti Park.
I think the protesters at Occupy NY in Zuccotti Park do have a legal right to be there because the park is open 24 hours per day and sleeping is not prohibited. Those NY protesters are not using tents.
Occupy LA is also legal because sleeping on the sidewalk at night in L.A. is legal. The protesters are on City Hall lawn by invitation.
I believe the lawsuit in Ohio is with regard to a policy that was changed quickly specifically to keep out the Occupy group.
I think the desire to “occupy,” to seize a location and camp out there, is being pushed largely by veterans recently returning from the Iraq war. As such, I hope local governments will treat them and their desires gently and with respect.
If a group made a protest outside on a park or public space, does a property owner have rights to sue if sales were less because protesters?
Do I have a right to sue in civil court?
And, could I legally get names of protesters?
If I I hire name takers to get names, could I sue those who protest?
And would you know of civil lawyers who would take a case?
The First Amendment Center can’t offer legal advice, but we’re not familiar with any cases in which someone has successfully sued others for lawfully exercising their right of assembly.
I didn’t know that there was a time limit on our rights and Freedoms to Assemble. Yet there are many laws prohibiting and limiting the exercise of our rights and freedoms daily.
Thanks for making this site and forum available to express, explore, and fight for our Freedoms. It does work, as we have noticed by our daily reminders to our governmental Officials.
I love to see firsthand the involvement of the people to support, acknowledge, and improve on our Declaration of Freedoms and Constitutional rights. This should continue to improve on our Governments accountability to acknoledge the will of the people they are sworn to serve and protect.
the 1st Amendment states…
the right of the people peaceably to assemble
These protest in my opinion are not assembled peacefully…with fights, rapes, urination on private and public properties,destruction of property,disease,harassment, threats, drug use. while also effecting other Americans lives and businesses and the list goe’s on…
this is no more covered by the 1st Amendment then yelling fire in a crowded movie theater…
“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.”
anyone remenber the teamsters ,Hoffa, or think about the tactics of the CIA. could they not have moles or plants within the occupy to cause chaos or start violence and try to corrupt the movement from the inside? it has been used before so why could it not be an issue now?
The First Amendment of the United States Constitution’s guarantee of the “right of assembly” may not include the right to camp out anywhere indefinitely, but I hope it still guarantees the right to assemble. True, municipalities may place limits based on security, hygiene, and general disruption of civic matters. But do 15 people sitting on a walkway at a public university rate as creating security, hygiene, and general disruption maters? Really?
Wow, if that’s the case, any kind of rationalization is possible. It harkens back to the fall of 1997 and the actions of the police and the subsequent supreme court ruling in the “unprecedented” and in “violation of acceptable police community practices” verdicts in the Humbolt County demonstrations against the logging of the last old growth redwood forests. Yeah, that went over well. Goggle those videos for a real eye opener.
But I think we’re well beyond that now. We all have cell phone video now. We can all see what the actual “disruptions” are. There is not the chance for rationalization based on the mysterious and controlled “official” commentary. There is the reality of hundreds of videos. And, they are brutal in their reality.
Reviewing the videos, there was no surrounding security, hygiene, and general disruption of civic matters going on. Does anyone see anything else? In my estimation, there were about 15 people trying to make a point. Annette Spicuzza, the UC Davis police chief, ought to resign in disgrace. Furthermore, she ought to be personally held accountable for the battery.
Maybe that would change the landscape of the American police system.
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