Freedom to assemble, not camp out indefinitely

Tuesday, October 18, 2011

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.

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