By Max Chalkin
On Wednesday, Suffolk Superior Court Judge Frances A. McIntyre granted Occupy Boston a temporary injunction, protecting the protest from eviction from Dewey Square and preventing police from removing tents and personal property. There will be another hearing on Dec. 1 to assess whether the protesters have a right to camp in the park for the long term. OB attorney Howard M. Cooper expressed confidence in a positive outcome for the protesters in that hearing.
In New York, however, the courts were not as favorable to Occupy Wall Street protesters. Judge Michael D. Stallman of the New York Supreme Court ruled that the protesters “have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely.” On Wednesday, protesters were allowed back into the park -- but without tents, sleeping bags, large bags or personal items.
According to Occupy Boston’s website, there has been a sustained crackdown on Occupy protests across the nation, from New York City to Denver, Oakland, Portland, Phoenix, London, and Toronto, among others. One cannot help but wonder: When will the other shoe drop in Boston?
There are a couple factors at work that may provide clues as to what to expect in Dewey Square. The first is the motivations of Mayor Michael Bloomberg’s office in ordering the NYPD to sweep into Zuccotti Park in the middle of the night to expel the protesters; the second, the legal grounds used to boot them out.
First, the motivations: Bloomberg claims there were two reasons for the police action: 1. Conditions in the camp and safety concerns around the park, and 2. occupying Zuccotti meant no one else got to use it.
With regards to the former, the mayor said in a statement the morning after the raid:
I have become increasingly concerned -- as had the park’s owner, Brookfield Properties -- that the occupation was coming to pose a health and fire safety hazard to the protestors and to the surrounding community….The park had become covered in tents and tarps, making it next to impossible to safely navigate for the public, and for first responders who are responsible for guaranteeing public safety….It has become increasingly difficult even to monitor activity in the park to protect the protestors and the public, and the proliferation of tents and other obstructions has created an increasing fire hazard that had to be addressed.It cannot be denied that there is some validity to these concerns. Experts, authorities, and even OWS protesters have all expressed concerns about deteriorating sanitation at the Zuccotti camp.
Unfortunately, the park was becoming a place where people came not to protest, but rather to break laws, and in some cases, to harm others. There have been reports of businesses being threatened and complaints about noise and unsanitary conditions that have seriously impacted the quality of life for residents and businesses in this now-thriving neighborhood. The majority of protestors have been peaceful and responsible. But an unfortunate minority have not been -- and as the number of protestors has grown, this has created an intolerable situation.
But the second reason the mayor gave for his actions was total bull. Even the New York Times, in an editorial published on Nov. 15, rebutted this idea. “He [Mayor Bloomberg] has said that the park should be open to everybody, not just the occupiers. Well, yes, but we doubt that that was the real motivation for clearing the park of tents,” the piece said. “It sounded like a justification spun up by political advisers. In any case, protecting everybody’s right to be there should not be a pretext to keep out the Occupy Wall Street protesters.”
As for the legal justification for preventing Occupy Wall Street protesters from returning to Zuccotti Park with tents and sleeping bags, the mayor and Judge Stallman claimed that camping does not fall under the First Amendment right to free speech. This debate is a contentious issue, one that has been viewed in different light by different judges. In New York, Judge Stallman did not see camping as within the First Amendment rights of the protesters; in Boston, however, Judge McIntyre, ruled differently. According to a Boston Globe article, “McIntyre [in granting OB a temporary injunction]…was concerned about the potential for abridgement of the protesters’ First Amendment rights.”
The one thing that is clear is that it's up to the courts, not the mayor of New York City, to decide what rights do and do not fall under the auspices of the First Amendment. Before Judge Stallman made any decision on whether or not camping in Zuccotti Park was protected by the Constitution, the Mayor had the audacity to say, rather unequivocally, that “the First Amendment gives every New Yorker the right to speak out -- but it does not give anyone the right to sleep in a park or otherwise take it over to the exclusion of others….There is no ambiguity in the law here -- the First Amendment protects speech -- it does not protect the use of tents and sleeping bags to take over a public space.”
It is way out of the mayor’s dominion to be making claims about what rights are and are not protected by the Constitution. Camping in a public space may likely be proven in the courts to be a perfectly acceptable expression of free speech, and if so, the mayor will be eating humble pie.
In the end, there are two simple lessons that Occupy Boston can glean from the events in New York:
- Be perfect. Do not allow any circumstances to arise in Dewey Square that could be construed as hazardous or illegal.
- Get a good lawyer. If OB can prove in the Dec. 1 hearing that camping is a legitimate expression of free speech under the First Amendment, they will have the legal justification to continue their Dewey Square occupation.
What do you think? Is camping free speech?
Max Chalkin is spending time "in the trenches" at Occupy Boston, speaking with occupiers, attending general assemblies and marches, and learning what camp life is like. His thoughts and observations will be published twice each week as TNGG Boston's “Dispatches from Dewey Square” series.
Photo by Courtney Sacco
About Max -- Max Chalkin is a recent graduate of Tufts University and is currently working in biotech marketing. His interests include entrepreneurship, technology, politics, food, and nightlife. He is an avid photographer, cook, and scuba diver.
The author is solely responsible for the content.