Image: Christopher Guerra from San Franciso, Calif. stays warm as he participates in the Occupy Wall Street protest Oct. 28 at the Zuccotti Park encampment in New York.
Bebeto Matthews  /  AP
Christopher Guerra from San Franciso, Calif. stays warm as he participates in the Occupy Wall Street protest Oct. 28 at the Zuccotti Park encampment in New York.
By Kari Huus Reporter
msnbc.com
updated 11/17/2011 2:53:41 PM ET 2011-11-17T19:53:41

To protesters, it was outrageous.

Under a directive from New York City Mayor Michael Bloomberg, New York police evicted hundreds of Occupy Wall Street protesters from New York's Zuccotti Park early Tuesday morning and broke down the encampment that had served as headquarters for the protest for nearly two months.

Protesters have been allowed to return to the park, but they cannot bring sleeping bags, tents, tarps or other camping gear, and they can't sleep or lie down there. There are anecdotal reports of people being stopped for trying to bring in musical instruments, books and food.

Protesters see the police action as a blatant infringement of their constitutional rights.

"The First Amendment is very, very clear that the right to peacefully publicly assemble shall in no way be infringed," said Patrick Bruner, an Occupy Wall Street protester who is on the public relations working committee. "Obviously it has been … by not allowing us to peacefully assemble in the way that we want to peacefully assemble."

But constitutional law experts say that persuading a court with that argument is — while not impossible — a long shot. That's because the right to free assembly and expression in public spaces can be curtailed for health and safety reasons.

That is precisely the reasoning that Bloomberg used to justify his decision to remove the protesters.

"From the beginning, I have said that the city had two principal goals: guaranteeing public health and safety and guaranteeing the protesters' First Amendment rights. But when those two goals clash, the health and safety of the public and our first responders must be the priority," Bloomberg said Tuesday.

It's an argument that city governments have used successfully many times in the last 50 years, say experts. Similar rationale has been employed to disperse Occupy encampments in Oakland, Portland, Sacramento, Atlanta and other cities in recent weeks — saying that the right to free speech does not guarantee the right to round-the-clock occupation.

"City officials like Bloomberg tend to have an advantage in these disputes," said Jonathan Turley, professor of law at George Washington University. "The key question for courts is whether protesters are being singled out because of the content of their message. That is the most serious (First Amendment) violation."

The courts generally agree to some restrictions on free speech and assembly for reasonable "time, place and manner" concerns. For instance, city officials might reasonably ban protesters from demonstrating in the middle of Madison Avenue at rush hour. But the rule must be "content neutral," meaning it is applied equally to animal rights activists, war protesters and any other group or individual seeking to spread a message.

Even when a rule that restricts protest applies to everyone — such as the new ban on camping in Zuccotti Park — its opponents might argue that it was created for reasons that were not neutral, Turley said. In other words, they could say that New York officials banned camping and structures in the park not for health and safety reasons but to silence the movement.

"There are cases where ostensibly neutral rules are found to be directed at one group and express hostility to one group's message," he said.

Occupy Wall Street activists might use that line of reasoning if they pursue the legal case against the camping ban. Activists claim that they tried to hold talks with the city government to address health and safety concerns when they were raised, but that city officials refused to engage in discussions.

"The government could have tried to negotiate with Occupy Wall Street in ways that would have satisfied issues around health and safety if there were any... There was nothing that couldn't have been remedied," said Michael Ratner, an attorney with the National Lawyers Guild, which has been providing legal support to the movement. "I think it was a pretextual way of closing it down."

"The argument that the city would not engage … certainly is relevant," according to Turley. "The city may be using a calculated and perhaps cynical strategy. They may not want to see the sanitation issues improved, because they are really seeking the expulsion of the protesters."

To demand or not to demand? That is the 'Occupy' question

Ratner said there is another argument that could serve "Occupy" protesters if they want to argue for camping in Zuccotti Park on First Amendment grounds.

The First Amendment protects not only speech and assembly rights but also "expressive conduct" — including things like burning the American flag and wearing black arm bands, as protesters did during the Vietnam War.

There is a precedent in New York City for sleeping in public places as a form of expressive conduct, Ratner said. In 2000, a judge ruled in favor of protesters sleeping on city sidewalks to protest rent increases.

"They were sleeping on the sidewalk to say 'this is what will happen to us if you raise the rent'," Ratner said. "A federal judge said this is expressive conduct. … You can place limits on it, but you can't restrict it altogether." The protesters were allowed to continue sleeping on the sidewalks but had to leave half of the walkway open so pedestrians could get through.

Ratner argues that camping in Zuccotti Park could be seen as a form of expressive conduct because it is as near to occupying Wall Street as protesters can manage — and Wall Street is to them the symbol of the people and institutions that they believe drove the economy to the edge of ruin and created the gaping disparity between rich and poor.

"My point of view is that it is expressive speech that is protected," said Ratner. "The question is — how far does that go? This example is slightly beyond (sleeping on sidewalk), but I think it would be justified by that precedent.

"That doesn't mean that there can't be any restrictions. The judge could have written a judgment that said the protesters could use one-half or one-third of the park."

Photoblog: Who is occupying Wall Street?

Unlike most public parks in the city, Zuccotti Park is open 24 hours a day. The park is privately owned but required to serve the public — as part of a deal between the city and a developer.

Occupy Wall Street protesters are debating whether their next moves will include a legal appeal of the camping ban, according to Bruner.

"The legal team needs a few more days to decide what to do," he said.

But even if the protesters decide to press their case through the plodding legal system, they are not planning to sit around waiting for the outcome. They are planning "flash crowds" and other actions to keep their message alive.

"We will continue to exercise our rights," said Bruner. "We don't need permission to exercise our rights."

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