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The Occupy Movement And The First Amendment: 'A Classic Collision'

Nov 15, 2011
Originally published on November 15, 2011 1:34 pm

When New York Police moved to dismantle the Occupy Wall Street encampment at Zuccotti Park in the pre-dawn hours, one of the first questions aired on the Web was, "What about the First Amendment?"

Juan Cole, a professor of history at the University of Michigan, quickly penned a blog post, concluding:

"Over time, the US government has gradually found ways to render the Bill of Rights increasingly toothless, and to move us toward authoritarian governance and constant domestic surveillance."

But does this government action — today in New York and previously in other cities including Portland, Ore., Oakland and Nashville — violate the American public's right "peaceably to assemble?"

We spoke to Gene Policinski, senior vice president and executive director of the First Amendment Center at Vanderbilt University, who said what we are seeing right now is a "classic collision" between fundamental rights and a government weighing if they cross the line because of issues such as public safety.

ProPublica reports on some of the exceptions previous case law has placed on the First Amendment:

"The First Amendment is not absolute. Government can make reasonable stipulations about the time, place and manner a peaceable protest can take place, as long as those restrictions are applied in a content-neutral way.

"But what constitutes a reasonable time, place and manner restriction? 'It depends on the context and circumstances,' said Geoffrey Stone, a professor specializing in constitutional law at the University of Chicago. 'Things like noise, blockage of ordinary uses of the place, blockage of traffic and destruction of property allow the government to regulate speakers.'

"Stone gave a few examples of impeding ordinary usage: disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time."

Policinski thinks you'll be hearing that term, "content-neutral," a lot over the next few months, because these decisions made by mayors and police chiefs across the country will be challenged in court and that threshold is of maximum importance.

In fact, as Mark reported earlier, the Zuccotti eviction is already in court.

"Government can only intrude (on these rights), when they can make a very good case," said Policinski. "It's really about the government having to say, 'here are these very good, demonstrable reasons.'" Mere convenience is not good enough.

Another big hurdle for the government in these cases, said Policinski, will be to prove that they are making these decisions without taking into account the reasons for the protests or in a "content neutral" manner.

One thing to watch: In Nashville, like in New York, the regulations concerning overnight stays were enacted after the protests started.

"A judge will look at those restrictions with suspicion," said Policinski.

But Policinski says that New York City Mayor Michael Bloomberg is making the public safety case. In his press conference earlier today, Bloomberg said the continued occupation posed "a health and fire safety hazard to the protestors and to the surrounding community."

Oakland Mayor Jean Quan issued a similar statement after a man was shot and killed near the site.

"Tonight's incident underscores the reason why the encampment must end. The risks are too great," said Quan.

And in Burlington, Vt., police made the same case after a shooting there.

"The overwhelming majority of people in this movement are peaceful and they've have tried very hard with the city to achieve balance and to ensure that they're doing their best to create a safe environment. It's clear that it's not completely possible to do that, we believe, with the existence of tents," said Police Chief Michael Schirling

Clearly, said Policinski, these are attempts to "build the case."

Update at 1:28 p.m. ET. A Bit More On Zucotti Park:

As Propublica points out, Zucotti Park is in a legal gray area, because it is in a privately-owned public space.

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